The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
(1) DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO AMEND; AND (2) DISMISSING ACTION WITHOUT PREJUDICE [Doc. No. 12]
Hoang Minh Tran ("Plaintiff"), who is currently incarcerated at California Men's Colony ("CMC") in San Luis Obispo, California, is proceeding pro se and initiated this civil action pursuant to 42 U.S.C. § 1983 on June 21, 2010. On August 23, 2010, the Court granted Plaintiff's Motion to Proceed in forma pauperis ("IFP"), but denied his Motion for Appointment of Counsel and dismissed his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Aug. 23, 2010 Order [Doc. No. 4]. Plaintiff was granted 45 days leave, however, to amend his pleading. Id. at 7.
On September 27, 2010, Plaintiff submitted a Motion requesting an extension of time in which to file his Amended Complaint [Doc. No. 5]. Plaintiff requested additional time based on two cell moves at CMC and the "complexity and novelty" of his case. The Court granted this request and provided Plaintiff additional time to file his First Amended Complaint.
On November 18, 2010, Plaintiff filed a second "Motion Request for Continuance Extension of Time to Amend Complaint Due to Outcome Disposition of Post Conviction Direct Appeals." [Doc. No. 10]. In this request, Plaintiff is anticipating the "likely reversal from the Court of Appeal in the State of California" of his criminal convictions. See Pl.'s Mot. at 1. Thus, Plaintiff seeks an additional sixty (60) days to file his First Amended Complaint. Id.
While Plaintiff's initial Complaint suffered from a number of deficiencies and his anticipated ruling from the Court of Appeal was highly speculative, the Court granted him additional time to file his First Amended Complaint. See Nov. 24, 2010 Order at 2. Plaintiff had until January 24, 2011 to file his First Amended Complaint. Id.
On January 26, 2011, instead of his First Amended Complaint, the Court received a third motion for extension of time to file Plaintiff's First Amended Complaint "due to the outcome disposition of post-conviction direct appeals." See Pl.'s Mot. at 1. Plaintiff again seeks a six month extension of time because he believes the California Court of Appeal will reverse his criminal conviction and he will be able to proceed with the claims in this case that this Court found were not yet cognizable pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). First, the Court has already granted Plaintiff two previous extensions of time. Second, Plaintiff's belief that the California Court of Appeal will reverse his conviction is pure speculation. Third, even if Plaintiff were able to overcome the Heck bar, Plaintiff's Complaint contains a number of deficiencies that he is unlikely to be able to fix by filing an Amended Complaint. There is simply no good cause for this Court to provide Plaintiff with any further extensions of time.
Accordingly, the Court hereby DENIES Plaintiff's Motion to Extend Time to file an Amended Complaint [Doc. No. 12]. This entire action is DISMISSED without prejudice for failing to comply with the Court's November 24, 2010 Order and for all the reasons set forth in the Court's August 23, 2010 Order.
© 1992-2011 VersusLaw ...