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Abushama v. U.S. Dep't of Homeland Security

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 1, 2010

ISSA SAMEER ABUSHAMA, BOP # A055-193-517, PLAINTIFF,
v.
U.S. DEPT. OF HOMELAND SECURITY, DEFENDANT.

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

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO AMEND [Doc. No. 5]

Issa Sameer Abushama ("Plaintiff"), currently detained at a U.S. Department of Homeland Security Immigration and Customs Enforcement facility in Miami, Florida, is proceeding pro se and has initiated this civil action pursuant to 42 U.S.C. § 1983.

At the time he filed his Complaint, Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].

On April 1, 2010, the Court granted Plaintiff's IFP Motion, but dismissed his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See April 1, 2010 Order [Doc. No. 3]. Plaintiff, however, was granted 45 days leave to amend his pleading. Id. at 7; see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) ("[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured.") (citations omitted).)

On May 20, 2010, Plaintiff submitted a Motion requesting an extension of time in which to file his Amended Complaint [Doc. No. 5]. Plaintiff asserts he has a medical condition which limits his ability to access the law library or legal staff at the facility where he is detained. (See Pl.'s Mot. at 1.)

I. 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).

II. CONCLUSION AND ORDER

Accordingly, the Court hereby:

1) GRANTS Plaintiff's Motion to Extend Time to file an Amended Complaint [Doc. No. 5]. Plaintiff's Amended Complaint, should he elect to file one, must be received by the Court no later than Monday, July 12, 2010. Moreover, Plaintiff is cautioned that his Amended Complaint must address the deficiencies of pleading previously identified in the Court's April 1, 2010 Order [Doc. No. 3], and must be complete in itself without reference to his original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989); and 2) NOTIFIES Plaintiff that if he chooses not to file a Amended Complaint by July 12, 2010, the Court shall enter a final Order of Dismissal in this matter for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and for failing to comply with a Court Order.

IT IS SO ORDERED.

20100601

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