(PC) Rivera v. Davey et al, No. 1:2016cv01817 - Document 21 (E.D. Cal. 2018)

Court Description: ORDER VACATING 19 Findings and Recommendations; ORDER GRANTING 20 Motion for Extension of Time to File Amended Complaint Within Thirty Days, signed by Magistrate Judge Barbara A. McAuliffe on 4/15/18. (Marrujo, C)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 RICKY RIVERA, 13 14 15 Case No.: 1:16-cv-01817-AWI-BAM (PC) Plaintiff, v. DAVE DAVEY, et al., 16 Defendants. 17 ORDER VACATING FINDINGS AND RECOMMENDATIONS (ECF No. 19) ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 20) 18 19 20 Plaintiff Ricky Rivera is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. 21 I. Background 22 On November 22, 2017, the undersigned screened Plaintiff’s complaint, found that he had 23 failed to state any cognizable claim, and granted him leave to amend within thirty (30) days. 24 (ECF No. 14.) Plaintiff failed to amend, and on January 11, 2018, the Court issued findings and 25 recommendations recommending dismissal of this action. (ECF No. 15.) Plaintiff filed a motion 26 seeking an extension of time to amend his complaint, (ECF No. 16), and therefore on January 16, 27 2018, the Court vacated the findings and recommendations and granted Plaintiff an additional 28 thirty days to file an amended complaint, (ECF No. 16.) 1 Rather than file an amended complaint, on February 9, 2018, Plaintiff filed objections 2 arguing that he had sufficiently pleaded a cognizable claim in his original complaint. (ECF No. 3 18.) On March 22, 2018, the Court issued findings and recommendations that it had considered 4 Plaintiff’s objections, but nevertheless found that his complaint failed to state a cognizable claim 5 for relief. (ECF No. 19.) Thus, the Court recommended dismissal of this action, and allowed 6 fourteen (14) days for objections. (Id.) 7 II. 8 Currently before the Court is Plaintiff’s motion to extend the deadline for objections to the 9 Request for Extension of Time findings and recommendations, with a declaration in support, filed on April 9, 2018. (ECF No. 10 20.) Plaintiff asserts in the motion that as a layman at the law with a limited education, he 11 misunderstood the Court’s prior screening order and findings and recommendations. Plaintiff has 12 since found a fellow inmate to assist him with his action, and now seeks leave to file a first 13 amended complaint curing the deficiencies previously identified by the Court, as opposed to 14 standing on his original complaint. Plaintiff asserts that he previously failed to amend based on 15 his pro se status and misunderstanding, but is diligently working on amended allegations. 16 Therefore, he seeks a thirty (30) day extension of time to now file an amended complaint in 17 compliance with the Court’s November 22, 2017 screening order. 18 The Court finds that the interests of justice are best served by allowing Plaintiff an 19 opportunity to amend his complaint, and that he has shown diligence and good cause under the 20 circumstances. Therefore, one final extension of time will be granted. Because Plaintiff has now 21 been granted multiple extensions of time to file an amended complaint, no further extensions of 22 time will be granted absent extraordinary cause. 23 III. 24 Accordingly, it is HEREBY ORDERED that: 25 26 27 28 Conclusion 1. The findings and recommendations issued on March 22, 2018 (ECF No. 15), are 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an vacated; amended complaint; 2 1 3. No extension of time of the deadline set in this order shall be granted. 2 3 4 IT IS SO ORDERED. Dated: /s/ Barbara April 15, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3