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Paul Banchich v. Raul Lopez
May 1, 2012
PAUL BANCHICH, PETITIONER,
RAUL LOPEZ, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
By order filed March 19, 2012, petitioner's second request for extension of time to file an amended petition was granted. (Dkt. No. 24.) Petitioner was cautioned that no further extensions of time would be granted. However, on April 16, 2012, petitioner filed a letter to the Clerk of Court in which he stated he was deprived of his property on February 27, 2012, when he was placed in administrative segregation ("ad seg"). (Dkt. No. 25.) Petitioner states that although the classification committee has cleared petitioner for housing in general population, at the present time he remains in ad seg without benefit of his legal materials, and therefore is still unable to file an amended petition. Petitioner asks that if the court opts to dismiss the case, the dismissal be without prejudice. In addition, petitioner has been diagnosed with carpel tunnel syndrome in both wrists, which makes it difficult for petitioner to write for extended periods.
On January 9, 2012, respondent's motion to dismiss was granted, and petitioner was granted thirty days' leave to file an amended petition. (Dkt. No. 20.) The seven page order provided petitioner with relevant legal authorities and detailed reasons why the original petition failed to provide the factual information necessary to evaluate petitioner's claims. Petitioner was subsequently granted two thirty-day extensions of time. (Dkt. Nos. 22, 24.) The court is aware that prisons have procedures in place for prisoners housed in ad seg to request access to their legal materials, as well as to ask for legal sources from the prison law library. Petitioner may not simply rely on his housing in ad seg, without additional support, to continue to seek extensions of the filing deadline.
However, in an abundance of caution, the court will grant petitioner one final extension of time in which to file an amended petition. Petitioner is cautioned that failure to file an amended petition will result in a recommendation that this action be dismissed based on petitioner's failure to file an amended petition.
Accordingly, IT IS HEREBY ORDERED that petitioner is granted one final thirty day period in which to file an amended petition that complies with the January 9, 2012 order. Failure to timely file the amended petition will result in a recommendation that this action be dismissed without prejudice.
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