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Haraszewski v. Brannan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 25, 2010

HUBERT DYMITR HARASZEWSKI, CDCR #AC-2622, PLAINTIFF,
v.
LISA BRANNAN, POLICE INVESTIGATOR; JOHN MORGANS, D.A. INVESTIGATOR; HANK TURNER, POLICE SERGEANT; PATRICIA LAVARMICOCCA, ASSISTANT DISTRICT ATTORNEY, DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER GRANTING PLAINTIFF'S SECOND MOTION FOR TO AMEND EXTENSION OF TIME [Doc. No. 9]

Hubert Dymitr Haraszewski ("Plaintiff"), a state prisoner currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, is proceeding pro se and has initiated this civil action pursuant to 42 U.S.C. § 1983.

I. Procedural Background

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 20, 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 20, 2010 Order [Doc. No. 4].

Plaintiff was granted 45 days leave, however, to amend his pleading. Id. at 6; 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 April 30, 2010, Plaintiff submitted a Motion requesting an extension of time in which to file his Amended Complaint, as well as copy of his original Complaint [Doc. No. 7]. Plaintiff claimed that because he is housed in the Administrative Segregation Unit, he had inadequate access to the prison's law library. On May 6, 2010, the Court granted Plaintiff's Motion, giving him until July 5, 2010 to submit his Amended Complaint, and further directed the Clerk to provide Plaintiff with as a copy of his original Complaint as well as a blank form Amended Complaint for his reference and use [Doc. No. 8].

On June 22, 2010, Plaintiff submitted a second Request for Extension of Time to Amend [Doc. No. 9]. Plaintiff claims that despite the previous extension, he has "not been given law library access even ONE time" in the last 50 days, even though the law library is "theoretically open to inmates" two days a week. Therefore, Plaintiff claims he is unable to meet the Court's July 5, 2010 deadline. (See Pl.'s Mot. at 1-2.)

II. Standard of Review

While this is Plaintiff's second request for an extension of time, he is still 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).

Plaintiff is cautioned, however, that the Court is unlikely to grant any further extensions of time absent a showing of extraordinary circumstances.

III. Conclusion and Order

Accordingly, the Court hereby GRANTS Plaintiff's Second Motion to Extend Time to file an Amended Complaint [Doc. No. 9].

Plaintiff's Amended Complaint, should he elect to file one, must be received by the Court no later than Monday, August 9, 2010. Moreover, Plaintiff is cautioned that his Amended Complaint must address the deficiencies of pleading previously identified in the Court's May 6, 2010 Order [Doc. No. 4], and must be complete in itself without reference to his original 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 Amended Complaint by August 9, 2010, this action shall remain dismissed for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and without further Order of the Court.

IT IS SO ORDERED.

20100625

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