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Palacios v. Fresno County Superior Court

February 4, 2010

GLORIA PALACIOS, PLAINTIFF,
v.
FRESNO COUNTY SUPERIOR COURT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO VACATE ORDER

(Documents 21 and 22)

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION

Plaintiff Gloria Palacios ("Plaintiff") is appearing pro se in this civil rights action.

HISTORY OF ACTION

Plaintiff filed her complaint on March 25, 2009. On April 23, 2009, the Court dismissed the complaint with leave to amend and allowed Plaintiff 30 days within which to file an amended complaint.

On May 14, 2009, Plaintiff requested a 180 day extension of time. The Court granted Plaintiff an additional 30 days within which to file her complaint. On June 23, 2009, Plaintiff filed a second request for an extension of time. On June 25, 2009, the Court granted the requested 60 day extension, but noted, "Plaintiff is forewarned, however, that she has now been granted a total of 90 days additional time and further requests will be denied absent extraordinary circumstances."

On August 26, 2009, Plaintiff requested a third extension of time and the appointment of counsel. On September 4, 2009, the Court granted Plaintiff's request for additional time, explaining that Plaintiff's statement that she is being treated with medication and expects to improve her functioning within four or five weeks, as well as her statement that she was attempting to find counsel, constituted extraordinary circumstances. The Court further stated, "This is the Court's final extension, however, and further extensions will result in an Order to Show Cause why this action should not be dismissed for Plaintiff's failure to prosecute." (emphasis in original). In denying her request for counsel, the Court explained that although Plaintiff requested counsel based on her alleged disability, "her writing is clear and she does not appear to have any communication issues."

Plaintiff filed her First Amended Complaint on October 5, 2009.

On October 21, 2009, the Court issued Findings and Recommendation that certain causes of action and certain Defendants be dismissed without leave to amend. The Court further recommended that Plaintiff be granted leave to amend the section 1983 claims against the Fresno County Sheriff's Office, Sheriff Mims, Deputy Devins and Deputy Sheriff Chavez. Her amended complaint was due within 30 days. On December 3, 2009, the Court adopted the Findings and Recommendation.

On December 2, 2009, the Court issued Findings and Recommendation to dismiss the action for Plaintiff's failure to comply with the October 21, 2009, order to file an amended complaint within 30 days. The Court explained:

The Court's Findings and Recommendation stated that failure to comply with the terms would result in a recommendation that the action be dismissed. Moreover, Plaintiff has been given numerous opportunities to amend and in each instance, she was warned that failure to file an amended complaint within the specified time frame would result in a recommendation that her action be dismissed.

On December 23, 2009, after Plaintiff filed objections, the Court vacated the Findings and Recommendation. The Court stated:

Plaintiff has relied on her medical condition to explain her failure to meet a multitude of Court-imposed deadlines in this action. The Court has granted Plaintiff relief many times and has afforded her numerous opportunities to correct her pleadings. The scope of her complaint has been considerably narrowed by the Court's recent order, and given Plaintiff's writing abilities in her pleadings, including her most recent objections, there is no obvious reason why Plaintiff cannot submit an amended complaint. The pleading requirement in Rule 8 is straightforward. The complaint must contain a short and plain statement of her claims, and must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community ...


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