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Payne v. Brackett

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 22, 2010

MYRON ATRICE PAYNE, PLAINTIFF,
v.
G. BRACKETT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion (Doc. 22) filed on July 2, 2010. Plaintiff seeks a further 60-day extension of time to file an amended complaint. Plaintiff states that "if the court decides to deny plaintiff's request for enlargement/extension of time, plaintiff requests the court to allow plaintiff to 'withdraw' his complaint without prejudice, so that plaintiff can re-file a properly pleaded complaint at a later date."

As to plaintiff's request for enlargement of time, the court does not find good cause exists for a further extension of time. This action was initially filed in September 2009 and transferred to this court in October 2009. After the court granted in forma pauperis status on October 5, 2009, but before the court issued a screening order, plaintiff requested leave to file an amended complaint (see Doc. 15). The court issued an order denying that request as unnecessary because plaintiff could (and still can) amend his pleading as a matter of right without leave of court. On May 7, 2010, plaintiff was directed to file an amended complaint within 30 days. That deadline was subsequently extended to July 7, 2010. In his current request for an additional 60 days, plaintiff states that he has limited law library access. Given, however, that plaintiff need only plead factual allegations and need not include any legal research or argument with his complaint, an extension of time to provide plaintiff time to gain access to the prison law library is not warranted or necessary. Therefore, given the length of time this case has already been pending, as well as the lack of good cause shown for an additional extension of time, the court declines to grant plaintiff's request.

Anticipating this possibility, plaintiff's motion seeks in the alternative leave to voluntarily dismiss this action without prejudice. Because no response to the complaint has been filed, leave of court is not required and the action is dismissed without prejudice on plaintiff's notice. See Fed. R. Civ. P. 41(a)(1)(A)(I). The Clerk of the Court is directed to terminate all pending motions and close this file.

IT IS SO ORDERED.

20100722

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