Ochoa v. Hill

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MARCUS ANTONIO OCHOA, Case No.: 3:23-cv-2058-MMA-MMP CDCR #F-81217, [12] ORDER GRANTING MOTION FOR Plaintiff, 13 EXTENSION OF TIME TO FILE vs. FIRST AMENDED COMPLAINT [15] JAMES HILL, Warden; DR. JOHN [16] HODGES; DR. LUZVIMINDA SAIDRO; 17 JANE DOE, Registered Nurse; MITCHELL, Sergeant, [18] 19 Defendants. [21] 22 On November 6, 2023, Marcus Antonio Ocha (“Plaintiff”), an inmate currently 23 incarcerated at California State Prison – Los Angeles County (CSP-LAC) located in 24 Lancaster, California, filed a civil rights action (“Compl.”) pursuant to 42 U.S.C. § 1983 . 25 (ECF No. 1.) Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 26 to 28 U.S.C. § 1915 (a). (ECF No. 2.) 27 On November 16, 2023, the Court conducted the required sua sponte screening 28 pursuant to 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b) and dismissed Plaintiff’s 1 Complaint for failing to state a claim. (ECF No. 3.) The Court granted Plaintiff forty five 2 (45) days leave to file an amended complaint to correct the deficiencies of pleading 3 identified in the Court’s Order. (See id.) On January 8, 2024, Plaintiff filed a request for 4 extension of time to file an amended pleading. (ECF No. 4.) In this request, Plaintiff 5 requests an additional sixty (60) days to file an amended pleading. (See id.) 6 I. Motion for Extension of Time 7 Plaintiff’s request for extension of time is timely filed, he remains incarcerated, and 8 is still proceeding without counsel. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 , 9 699 (9th Cir. 1990) (court has a “duty to ensure that pro se litigants do not lose their right 10 to a hearing on the merits of their claim due to . . . technical procedural requirements.”). 11 “‘Strict time limits . . . ought not to be insisted upon’ where restraints resulting from a pro 12 se . . . plaintiff’s incarceration prevent timely compliance with court deadlines.” Eldridge 13 v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465 , 14 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) 15 (reversing district court’s dismissal of prisoner’s amended pro se complaint as untimely 16 where mere 30-day delay was result of prison-wide lockdown). 17 Plaintiff contends that he needs additional time to comply with the Court’s Order 18 due to “certain institutional programming impediments and health issues.” (ECF No. 4 at 19 1.) The Court finds good cause to grant his request. 20 II. Conclusion and Order 21 Accordingly, the Court: 22 1) GRANTS Plaintiff’s Motion for Extension of Time to Amend. (ECF No. 4). 23 Plaintiff’s Amended Complaint, should he elect to file one, must be received by the Court 24 no later than Friday, April 26, 2024. Plaintiff’s Amended Complaint must also address 25 all the deficiencies of pleading previously identified in the Court’s November 16, 2023 26 Order (ECF No. 3), and must be complete by itself without reference to his original 27 Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 28 Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 1 original.”); Lacey v. Maricopa Cnty, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 2 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 3 “considered waived if not repled.’’). 4 2) CAUTIONS Plaintiff that should he fail to file an Amended Complaint on or 5 || before Friday, April 26, 2024, the Court will enter a final Order dismissing his case based 6 his previous failure to state a claim pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 7 1915A(b), as well as his failure to prosecute in compliance with a Court Order requiring 8 |}amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 9 ||failure to prosecute permitted if plaintiff fails to respond to a court’s order requiring 10 |;}amendment of complaint); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 11 |/plaintiff does not take advantage of the opportunity to fix his complaint, a district court 12 convert the dismissal of the complaint into dismissal of the entire action.”); Edwards 13 || v. Marin Park, 356 F.3d 1058 , 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually 14 || to respond to the court’s ultimatum—either by amending the complaint or by indicating to 15 || the court that it will not do so—-is properly met with the sanction of a Rule 41(b) dismissal.’’). 16 IT IS SO ORDERED. 17 || Dated: January 11, 2024 19 United States District Judge [28] 3 ee