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Sullivan v. Biter

United States District Court, E.D. California

March 12, 2014

MICHAEL J. SULLIVAN, Plaintiff
v.
M. D. Biter, et al., Defendants

ORDER ADOPTING FINDINGS AND RECOMMENDATION, ORDER DENYING RECONSIDERATION, ORDER GRANTING PLAINTIFF ADDITIONAL TIME TO FILE AN AMENDED COMPLAINT, AND ORDER REFERRING MATTER TO MAGISTRATE JUDGE (DOC. NOS. 26, 29, 31, 36, 38)

ANTHONY W. ISHII, District Judge.

Plaintiff Michael J. Sullivan is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ยง 1983.

On September 16, 2013, the Magistrate Judge dismissed Plaintiff's first amended complaint and gave Plaintiff 30 days to file an amended complaint. See Doc. No. 30. On September 20, 2013, the Magistrate Judge issued a Findings and Recommendation ("F&R"), that recommended denying Plaintiff's motion for a preliminary injunction on the basis that there was no active complaint and thus, no current controversy. See Doc. No. 31.

On October 24, 2013, the Magistrate Judge granted Plaintiff a sixty day extension of time to file an amended complaint and to file objections to the F&R. See Doc. No. 33. On January 3, 2014, the Magistrate Judge granted Plaintiff another sixty day extension to file objections to the F&R and to file a second amended complaint. See Doc. No. 35.

On March 3, 2014, instead of filing objections to the F&R and a second amended complaint, Plaintiff filed a Rule 60(b) motion for reconsideration of the September 16 order dismissing the first amended complaint, a motion to recuse the magistrate judge, and a third motion for an extension of time to file objections to the F&R and a second amended complaint. See Doc. Nos. 36, 38, and 39. On March 6, 2014, the Magistrate Judge denied the motion to recuse. See Doc. No. 40. The Court has now considered the F&R and the pending motions.

First, with respect to the motion for reconsideration, no basis for Rule 60(b) relief is apparent. Plaintiff's motion amounts to little more than a disagreement with the Magistrate Judge's analysis, which is not a basis for relief. United States v. Westlands Water Dist. , 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

Second, with respect to the F&R, because there is not an active complaint, there is no basis for a preliminary injunction. Accordingly, it is appropriate to adopt the F&R at this time. However, once Plaintiff files an amended complaint, he may seek a temporary restraining order that is tied to the amended complaint.

Third, with respect to the motion for additional time, without an active complaint, no additional time to file objections to the F&R is warranted. Additional time will not change the fact that without a complaint, there can be no preliminary injunction. Thus, no more additional time will be granted. The Court will, however, grant Plaintiff an additional 30 days to file an amended complaint. Although Plaintiff has had nearly six months (from September 16) to file an amended complaint, in the interests of justice, the Court will give Plaintiff additional time. Further, given the excessive amount of time that has been provided to this point, it is extremely unlikely that the Court will grant further extensions. If Plaintiff does not file an amended complaint within 30 days of service of this order, then the case will be subject to dismissal without further notice for failure to comply with a court order and failure to prosecute.

Finally, Plaintiff's motion for appointment of counsel, which is part of the motion for additional time, is referred to the Magistrate Judge.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed on September 20, 2013, (Doc. No. 31) is adopted in full;
2. Plaintiff's motion for a temporary restraining order (Doc. No. 26) and Plaintiff's motion for a hearing (Doc. No. 29) are DENIED without prejudice;
3. Plaintiff's motion for reconsideration (Doc. No. 36) is DENIED;
4. Plaintiff's motion for additional time to file a second amended complaint (Doc. No. 38) is GRANTED in part and Plaintiff shall have 30 days to file an amended complaint;
5. Plaintiff is warned that the failure to file an amended complaint within 30 days of this order may result in the dismissal of this action without further notice; and
6. Plaintiff's motion for appointment of counsel (Doc. No. 38) is referred to the Magistrate Judge.

IT IS SO ORDERED.


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