Opinion
No. CIV S-07-0082-DFL-CMK-P.
November 2, 2007
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's request for an extension of time to file an amended complaint and respond to defendants' motion to dismiss (Doc. 32).
On June 11, 2007, the undersigned issued findings and recommendations to dismiss three of the six defendants named in plaintiff's complaint. Plaintiff filed objections to the findings and recommendations, and filed a request for additional time to file an amended complaint. Plaintiff's objections pointed out an error in the findings and recommendations as to the names of the defendants for which dismissal was recommended. Plaintiff did not specifically object to the dismissal of the defendants, although it was clear which defendants the undersigned was recommending be dismissed.
The court construed plaintiff's request for additional time as a request for leave to amend his complaint. The court found granting leave to amend unnecessary because plaintiff had not filed an amended complaint and no responsive pleading had been filed. Therefore, the court stated plaintiff could file an amended complaint within 30 days of the date of that order. Plaintiff was warned that if no amended complaint was filed within the time allowed, the Court would recommend dismissal of the three supervisory defendants and the case would proceed on the original complaint.
Plaintiff filed another request for additional time on August 31, 2007, which was granted. Plaintiff therefore had until October 9, 2007, to file his amended complaint. Plaintiff was again warned that if no amended complaint was filed, the action would proceed on the original complaint and the Court would recommend dismissal of defendants Veal, Mendoza, and Gyammi. No amended complaint has been filed.
In the meantime, defendants filed a motion to dismiss on September 13, 2007. No opposition to the motion to dismiss has been received. However, on October 15, 2007, plaintiff filed another request for an extension of time to file his amended complaint and to respond to the motion to dismiss. Plaintiff is asking for an additional 45 days.
Plaintiff's request for extension of time was filed on October 15, 2007, but it was signed and presumably placed into the prison mail system on October 6, 2007.
Plaintiff has been given sufficient time to file his amended complaint. His current motion for extension of time does not provide any reason for why he is in need of an additional 45 days. Plaintiff's motion simply states
Plaintiff respectfully moves this honorable court for an order granting a "45" day extension of time. Plaintiff is currently on leave to amend his civil rights complaint, who needs more time to amend that complaint. On or about September 20, 2007, plaintiff received a motion to dismiss his complaint, plaintiff would also use that extension of time to file his written opposition to that motion. (Doc. 32)
Eastern District of California Local Rule 6-144(c) states that after the initial extension of time, additional extensions of time will not ordinarily be granted. Plaintiff has shown no cause for an extraordinary grant of additional time. Plaintiff's motion will therefore be denied in regards to additional time for his filing an amended complaint. If plaintiff wishes to amend his complaint at this stage of the case, plaintiff will have to submit a request for leave of court to file his amended complaint. See Fed.R.Civ.Proc. 15(a), Local Rule 5-137(c). By separate order, the undersigned will recommend the dismissal of defendants Veal, Mendoza, and Gyammi.
Plaintiff's request for additional time also includes a request for additional time to respond to the motion to dismiss filed September 13, 2007. Although plaintiff has made no showing of good cause, the undersigned is aware that it is often difficult for prisoners to access the law library within the time required for a response to such a motion. Therefore, the Court will grant one extension of time to allow plaintiff an opportunity to respond to the motion to dismiss. However, the extension of time is limited to 30 days, not the 45 days plaintiff has requested. No additional extensions will be given.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for an extension of time (Doc. 32) is granted in part and denied in part;
2. Plaintiff's request for additional time to file an amended complaint is denied;
3. In order for plaintiff to file an amended complaint, he must submit a request for leave of court to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a) and Local Rule 5-137(c);
4. Plaintiff's request for additional time to respond to defendants' motion to dismiss is granted; and
5. Plaintiff may file his opposition to the motion to dismiss within 30 days of the date of service of this order.