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Young v. Smalls

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 26, 2010

HOWARD YOUNG, CDCR #F-44590, PLAINTIFF,
v.
LARRY SMALLS, ET AL. COMPLAINT DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO AMEND AND DIRECTING CLERK TO PROVIDE PLAINTIFF WITH COPY OF FIRST AMENDED [Doc. No. 15]

I. PROCEDURAL HISTORY

Howard Young ("Plaintiff"), a prisoner currently incarcerated at Calipatria State Prison in Calipatria, California, and proceeding pro se, initiated this civil action pursuant to 42 U.S.C. § 1983 on November 11, 1009.

On January 19, 2010, the Court granted Plaintiff leave to proceed in form pauperis but dismissed his Complaint sua sponte for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. See Jan. 19, 2010 Order [Doc. No. 11] at 11. In its Order, the Court identified Plaintiff's pleading deficiencies and provided him leave to amend. Id. at 5-12.

On the same day, however, Plaintiff filed a First Amended Complaint, as was his right pursuant to FED.R.CIV.P. 15(a) [Doc. No. 12]. Realizing that Plaintiff did not have the benefit of the Court's January 19, 2010 Order at the time he drafted his First Amended Complaint, on January 27, 2010, the Court issued an Order providing Plaintiff with the opportunity to either:

(1) file a Second Amended Complaint which addressed the pleading deficiencies identified in the Court's January 19, 2010 Order; or (2) notify the Court that he indeed wished to proceed with the First Amended Complaint filed on January 19, 2010. See Jan, 27, 20210 Order [Doc. No. 13] at 2.

On February 16, 2010, Plaintiff filed a "Motion for Return of Record of all Previously Filed Documents and Extension of Time to File Amended Complaint" [Doc. No. 15], in which he asks the Court to provide him with copies of the First Amended Complaint he submitted on January 19, 2010, and thirty additional days which to prepare and submit a Second Amended Complaint.*fn1

II. STANDARD OF REVIEW

This is Plaintiff's first request for an extension of time, he is proceeding without counsel and his request is timely. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (court has a "duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to... technical procedural requirements."). Thus, the Court finds good cause to grant Plaintiff's request. "'Strict time limits... ought not to be insisted upon' where restraints resulting from a pro se... plaintiff's incarceration prevent timely compliance with court deadlines." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (reversing district court's dismissal of prisoner's amended pro se complaint as untimely where mere 30-day delay was result of prison-wide lockdown).

III. CONCLUSION AND ORDER

Accordingly, the Court hereby GRANTS Plaintiff's Motion to Extend Time to file his Second Amended Complaint [Doc. No. 15].

IT IS FURTHER ORDERED that the Clerk of Court shall provide Plaintiff with both another copy of the Court's January 19, 2010 Order [Doc. No. 11] as well as a copy of Plaintiff First Amended Complaint [Doc. No. 12]. Plaintiff's Second Amended Complaint must be received by the Court no later than Monday, March 29, 2010. Moreover, Plaintiff is cautioned that his Second Amended Complaint must address the deficiencies of pleading identified in the Court's January 19, 2010 Order, and must be complete in itself without reference to either his original or First Amended Complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989).

If Plaintiff chooses not to file a Second Amended Complaint by March 29, 2010, the Court will enter an Order dismissing the entire action for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).


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