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Leubner v. County of San Joaquin

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 30, 2009

MILOS LEUBNER, PLAINTIFF,
v.
COUNTY OF SAN JOAQUIN, ET AL., DEFENDANTS.

ORDER

Plaintiff is proceeding pro se and in forma pauperis. This action was referred to the undersigned pursuant to Local Rule 72-302(c)(21). On February 25, 2009 and March 2, 2009, defendants filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). No opposition to the motions has been filed.

However, on March 25, 2009, plaintiff filed a document entitled "Plaintiff's Request for a Motion for Administrative Relief . . . to Expand Time and to Amend or Supplement Complaint." Id. Plaintiff seeks leave to file a second amended complaint or supplemental pleading or, in the alternative, to extend the deadline by which he has to file an opposition to the pending motions to dismiss. Plaintiff attempted to seek a stipulation from defense counsel, but each refused his request to amend or to extend the deadline by which to oppose the motions to dismiss. Id. at 5.

Plaintiff's motion to amend was not, however, accompanied by a proposed second amended complaint. As a litigant proceeding in forma pauperis, plaintiff's pleadings are subject to evaluation by this court pursuant to the in forma pauperis statute. See 28 U.S.C. § 1915. Since plaintiff did not submit a proposed second amended complaint, the court is unable to evaluate it. Plaintiff's motion for leave to amend must therefore be denied.

Good cause appearing, plaintiff will be granted an extension of time in which to file an opposition to the pending motions to dismiss and to renew his motion to amend accompanied by a proposed second amended complaint. Plaintiff is cautioned that failure to timely oppose the motions to dismiss may result in a recommendation that the motions be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's March 25, 2009 motion for leave to amend is denied without prejudice.

2. The hearing date of April 9, 2009 is vacated. Hearing on defendants' motions to dismiss is continued to April 30, 2009 at 11:00 a.m. before the undersigned.

3. Plaintiff is granted an extension of time in which to oppose defendants' motions. Plaintiff shall file opposition, if any he has, to the motions to dismiss no later than close of business on April 17, 2009. Failure to file opposition and appear at the hearing will be deemed as a statement of non-opposition and shall result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

4. If plaintiff chooses to re-file his motion to amend, he shall file said motion on or before close of business April 17, 2009. The renewed motion must be accompanied by a proposed second amended complaint.

20090330

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