Opinion
2:20-cv-1356 KJM AC P
07-28-2021
JASON ERIC SCHMAUS, Plaintiff, v. P. COVELLO, et al., Defendants.
ORDER
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Before the court is plaintiff's motion for a stay, or in the alternative, a ninety-day extension of time to file an amended complaint. See ECF No. 14. The court notes that a recommendation is currently pending before the assigned District Judge that two of the claims in the complaint and several defendants be dismissed. See ECF No. 13. For the reasons stated below, the undersigned will grant plaintiff a ninety-day extension of time to file an amended complaint. In addition, the court will vacate the outstanding findings and recommendations.
I. BACKGROUND
On June 23, 2021, the court screened plaintiff's complaint and determined that only one of the three claims therein stated a claim upon which relief might be granted. See generally ECF No. 10. As a result, plaintiff was given the opportunity either to file an amended complaint or to proceed on the sole cognizable claim against the related defendant. See id. at 8. To that end, plaintiff was sent a notice on how to proceed form which, when completed, would inform the court which course of action he wished to take. See id. at 10. Plaintiff was given fourteen days to complete the form and return it to the court. See id. at 9. At that time, he was warned that his failure to timely complete and return the form to the court would result in the court issuing recommendations that this action proceed solely on the viable claim and that the defendants against whom plaintiff had failed to state claims be dismissed from this action. See id. at 8-9.
Plaintiff failed to timely complete and return the notice form to the court. As a result, the undersigned issued the pending findings and recommendations on July 19, 2021. See ECF No. 13. Shortly thereafter, on July 23, 2021, plaintiff filed the instant motion as well as the past-due notice on how to proceed form. See ECF Nos. 14 at 1-5, 15. The notice form indicates that plaintiff wishes to amend the complaint. See ECF No. 15.
II. PLAINTIFF'S MOTION
Plaintiff's instant motion requests that this matter either be stayed or that he be granted a ninety-day extension of time to file an amended complaint. See generally ECF No. 14 at 1-5. Plaintiff states that he has been ill and has been transferred from his assigned housing to an infirmary. As a result, plaintiff does not have his property, which includes his legal work, and will not have access to it until he is released from the hospital. See id. at 1-2. Because of his illness, plaintiff is currently physically unable to litigate these proceedings. See id. at 1-2, 4-5.
These facts constitute good cause for withdrawal of the findings and recommendations issued July 19, 2021, and for an extension of time to file an amended complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. The court's pending findings and recommendations issued July 19, 2021 (ECF No. 13), are VACATED;
2. Plaintiff's motion filed July 23, 2021 (ECF No. 14), is GRANTED only to the extent that it requests an extension of time to file an amended complaint, and
3. Within ninety days of the date of this order, plaintiff shall file a first amended complaint.
Plaintiff is warned that absent exigent circumstances, no further extensions of time to amend the complaint will be granted. DATED: July 28, 2021