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Jenkins v. Donovan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 19, 2010

CHRISTOPHER LEE JENKINS, CDCR #P-73828, PLAINTIFF,
v.
R.J. DONOVAN, APPEALS COORDINATOR, ET AL. DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT [Doc. No. 33]

I. PROCEDURAL HISTORY

Christopher Lee Jenkins ("Plaintiff"), a prisoner currently incarcerated at R.J. Donovan Correctional Facility ("RJD") in San Diego, California, and proceeding pro se, initiated this civil action pursuant to 42 U.S.C. § 1983 on January 12, 2009 in the Eastern District of California.

On January 15, 2009, United States Magistrate Judge Edmund F. Brennan found the case lacked proper venue and transferred the matter to the Southern District of California pursuant to 28 U.S.C. § 1406(a) [Doc. No. 5].

On January 27, 2009, this Court denied Plaintiff's Motion for leave to proceed in forma pauperis ("IFP") as insufficient, but granted him time to provide a properly supported IFP application [Doc. No. 8]. Plaintiff then requested, and was granted, an extension of time in which to do so [Doc. Nos. 9, 10].

On May 28, 2009, the Court granted Plaintiff's IFP Motion, but dismissed his Complaint sua sponte for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. See May 28, 2009 Order [Doc. No. 13]. In its Order, the Court identified Plaintiff's pleading deficiencies and provided him leave to amend. Id. at 4-7.

Plaintiff thereafter requested, and was granted, four separate extensions of time in which to file a First Amended Complaint [Doc. Nos. 14-19, 23-24.] On November 25, 2009, Plaintiff filed his First Amended Complaint, adding new claims and 37 additional Defendants [Doc. No. 26]. However, on December 14, 2009, the Court again found Plaintiff failed to state a claim and dismissed his First Amended Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and § 1915A(b)(1) [Doc. No. 27]. While Plaintiff was once again granted leave to amend, he was cautioned any additional requests for extensions of time would "only be granted for good cause shown." See Dec. 14, 2009 Order at 8.

Plaintiff thereafter filed, and was granted, two additional requests for extension of time in which to file a Second Amended Complaint [Doc. Nos. 28-29, 31-32]. And, on May 7, 2010, Plaintiff filed what is now his seventh request for an extension of time in which to amend [Doc. No. 33]. Plaintiff claims he requires additional time because in April 2010, he was transferred to two separate hospitals outside RJD for treatment of an infection which he claims requires a 6-8 week course of treatment. See Pl.'s Mot. at 2. Plaintiff specifically requests "an enlargement of time [up] to and including" July 31, 2010, in which to file his Second Amended Complaint. Id. at 1.

II. STANDARD OF REVIEW

As noted above, this is Plaintiff's seventh request for an extension of time. However, he is proceeding without counsel and currently alleges facts which demonstrate good cause for granting him at least one final extension of time. 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."). "'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).

Nevertheless, the Court finds it appropriate to caution Plaintiff that absent a showing of extraordinary circumstances, it will not grant any further extensions of time to amend in this case. Cf. Efau v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (noting that while a court's discretion in extending time [under FED.R.CIV.P. 4(m)] is broad, a plaintiff's protracted and repeated requests for extension of time must end somewhere, for "not court has ruled that the discretion is limitless.").

III. CONCLUSION AND ORDER

Accordingly, the Court hereby GRANTS Plaintiff's Motion for Extension of Time to file his Second Amended Complaint [Doc. No. 33].

IT IS FURTHER ORDERED that Plaintiff's Second Amended Complaint must be received by the Court no later than Monday, August 2, 2010. Moreover, Plaintiff is cautioned that his Second Amended Complaint must address the deficiencies of pleading identified in the Court's May 28, 2009 and December 14, 2009 Orders, and must be complete in itself without reference to either of his previous pleadings. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). ABSENT EXTRAORDINARY CIRCUMSTANCES, NO FURTHER EXTENSIONS OF TIME TO AMEND SHALL BE GRANTED IN THIS CASE.

If Plaintiff does not to file a Second Amended Complaint by August 2, 2010, the Court shall enter a final Order of Dismissal without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).

IT IS SO ORDERED.

20100519

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