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Barry Lamon v. B. Amrhein

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 30, 2013

BARRY LAMON,
PLAINTIFF,
v.
B. AMRHEIN, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER VACATING FINDINGS AND RECOMMENDATIONS OF JANUARY 11, 2013 (Doc. 12.) ORDER DENYING PLAINTIFF'S REQUEST TO STAY ACTION (Doc. 13.) ORDER GRANTING EXTENSION OF TIME FOR PLAINTIFF TO FILE AMENDED COMPLAINT NINETY DAY DEADLINE

I. BACKGROUND

Barry Lamon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on February 28, 2012. (Doc. 1.) On January 11, 2013, the Court entered findings and recommendations, recommending that this action be dismissed for failure to state a claim, based on Plaintiff's failure to file an amended complaint in compliance with the Court's order of December 7, 2012. (Doc. 12.)

On January 29, 2013, Plaintiff filed objections to the findings and recommendations. (Doc. 13.) Plaintiff asserts that he was unable to file an amended complaint because he was hospitalized for treatment of a life-threatening illness on November 22, 2012, subsequently transferred to the California Medical Facility in Vacaville, California, and presently remains there for treatment, without access to his legal materials. Plaintiff requests a stay of the proceedings in this action for ninety days, or until he is able to file an amended complaint.

II. REQUEST FOR STAY OF ACTION

The Court does not lightly stay litigation, due to the possibility of prejudice to defendants. Although the Court recognizes that Plaintiff is challenged by his health concerns and hospitalization, Plaintiff's only remedy is not a stay of this action. In the alternative, good cause appearing, Plaintiff shall be granted ninety days in which to file an amended complaint pursuant to the Court's order of December 7, 2012. Should Plaintiff require a further extension of time, he should file a motion before the current deadline expires.

III. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request to stay this action, filed on January 29, 2013, is DENIED; and

2. Good cause appearing, Plaintiff is GRANTED ninety days from the date of service of this order in which to file an amended complaint pursuant to the Court's order of December 7, 2012.

IT IS SO ORDERED.

20130130

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