Opinion
23-3178-JWL
10-13-2023
NICHOLAS A. SRADER, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, United States District Judge
Plaintiff Nicholas A. Srader initiated this matter by filing a pro se complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) The Court reviewed the complaint and identified deficiencies that left it subject to dismissal in its entirety. Thus, on August 1, 2023, the Court issued a Memorandum and Order (M&O) identifying the deficiencies and granting Plaintiff time to file an amended complaint that cured them. (Doc. 7.) Plaintiff timely filed an amended complaint. (Doc. 9.)
The Court reviewed the amended complaint and concluded that it also suffered from deficiencies that left it subject to dismissal in its entirety. Thus, on September 8, 2023, the Court issued a second M&O identifying the deficiencies in the amended complaint and granting Plaintiff a final opportunity to file a second amended complaint that cures the deficiencies. (Doc. 16.) The second M&O set the deadline for filing of the second amended complaint as October 10, 2023, and cautioned Plaintiff that if he “fails to timely file a second amended complaint that cures the deficiencies, this matter may be dismissed without further prior notice to Plaintiff. Id. at 18. The Court did not receive anything from Plaintiff by that deadline, so on October 11, 2023, the Court dismissed this case without prejudice. (Doc. 20.)
On October 13, 2023, the Court received from Plaintiff a motion for additional time in which to submit his second amended complaint. (Doc. 22.) Therein, Plaintiff asserts that he placed the motion in the institutional mail on October 6, 2023, which is before the deadline for filing the second amended complaint. “Because [Plaintiff] was a prisoner and filed his motion pro se, he may rely on the ‘prison mailbox rule,' which makes the date on which he presented his motion to prison officials for mailing the filing date for timeliness purposes.” United States v. Hopkins, 920 F.3d 690, 696 n. 8 (10th Cir. 2019).
In light of the motion now received by the Court, the Court will direct the clerk of court to reopen this matter and the motion for additional time (Doc. 22) will be granted. Plaintiff will be granted to and including November 13, 2023 in which to file his second amended complaint. Plaintiff is advised that if he fails to timely file his second amended complaint or if the second amended complaint fails to cure the deficiencies discussed in the Court's previous orders, this matter may be dismissed without further prior notice to him.
IT IS THEREFORE BY THE COURT ORDERED that the clerk shall reopen this matter. The motion for additional time (Doc. 22) is granted. Plaintiff is granted to and including November 13, 2023, in which to file his second amended complaint.
IT IS SO ORDERED.