Barnard v. The United States Department of Homeland Security (D.H.S.)
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court considered a pro se plaintiff's third motion for an extension of time to file an amended complaint, which had been previously dismissed with leave to amend. The court granted the motion, providing the plaintiff a final deadline of August 1, 2021, to file the amended complaint or face dismissal for failure to prosecute.
| What the court decided | The model |
|---|---|
Motion for extension of time to file an amended complaint granted“Good cause appearing, the Court GRANTS Plaintiff one final opportunity to file an amended complaint until August 1, 2021.” | agree with court The court applied the 'good cause' standard, which is the appropriate standard for granting extensions of time under Federal Rule of Civil Procedure 6(b). The plaintiff provided reasons (medical condition, medication side effects) and had a history of seeking extensions. Granting a final extension with a clear warning of dismissal is a standard exercise of discretion in managing a pro se case. |
The order itself: sound — The order is procedurally sound. It correctly identifies the procedural history, applies the 'good cause' standard for the extension, and cites the correct Ninth Circuit authority regarding the consequences of failing to amend (dismissal of the action). The reasoning is sufficient for a routine scheduling order.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DAVID BARNARD, Case No.: 20-cv-493-GPC(MDD)
11 Plaintiff, ORDER GRANTING PLAINITFF’S 12 v. REQUEST FOR EXTENSION OF TIME TO FILE AN AMENDED 13 THE UNITED STATES DEPARTMENT COMPLAINT OF HOMELAND SECURITY (DHS), 14 DHS MANAGEMENT DIRECTORATE [Dkt. No. 13.] 15 (DHS-MGMT), FEDERAL PROTECTIVE SERVICES (FPS) P. 16 YOUNG (ID NO. 1074), and DOES 1 17 through 5, all in their individual capacity, inclusive; in the same incident; THE 18 UNITED STATES CUSTOMS AND 19 BORDER PROTETION, and DOES 6 through 10, all in their individual capacity, 20 inclusive, 21 Defendants. 22 23 On April 1, 2021, Plaintiff, proceeding pro se and in forma pauperis, filed a motion 24 for extension of time to file an amended complaint. (Dkt. No. 13.) 25 On March 16, 2020, Plaintiff filed a civil rights complaint against Defendant P. 26 Young (ID No. 1074), a Protective Security Officer (“PSO”), U.S. Department of 27 Homeland Security, DHS Management Directorate, General Services Administration, 28 (“GSA”), Federal Protective Services and U.S. Department of Homeland Security 1 Customs and Border Protection (“CBP”) pursuant to 42 U.S.C. § 1983 for violating his 2 civil rights based on his unlawful detention, unlawful seizure of his vehicle and an 3 unlawful arrest during a stop at the San Ysidro Port of Entry on March 8, 2017. (Dkt. 4 No. 1, Compl.) On April 6, 2020, the Court granted Plaintiff’s motion to proceed in 5 forma pauperis and sua sponte dismissed the complaint for failure to state a claim with 6 leave to amend. (Dkt. No. 3.) On May 4, 2020, the Court granted Plaintiff’s motion for 7 extension of time to file an amended complaint by August 1, 2020. (Dkt. No. 6.) On 8 August 5, 2020, the Court granted Plaintiff’s second motion for extension of time to 9 amend the complaint until November 1, 2020. (Dkt. No. 8.) Instead of filing an 10 amended complaint, on November 2, 2020, Plaintiff filed a motion to appoint counsel. 11 (Dkt. No. 10.) On January 15, 2021, the Court denied Plaintiff’s request for appointment 12 of counsel and granted Plaintiff leave to file an amended complaint by April 15, 2021. 13 (Dkt. No. 11.) 14 In his third request, Plaintiff explains that due to his medical condition, and 15 negative side effects of prescribed medication, he is unable to retain an attorney as well 16 as other reasons why he is unable to timely file an amended complaint. (Dkt. No. 13 at 6- 17 7.1) He seeks 90 days not exceeding August 1, 2021 to retain an attorney to amend the 18 complaint. (Id. at 7.) Good cause appearing, the Court GRANTS Plaintiff one final 19 opportunity to file an amended complaint until August 1, 2021. 20 If Plaintiff fails to file his amended complaint on or before August 1, 2021, the 21 Court will enter a final Order dismissing the case based on his failure to prosecute. See 22 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 23 advantage of the opportunity to fix his complaint, a district court may convert the 24 / / / 25 / / / 26 / / / 27 28 1 || dismissal of the complaint into dismissal of the entire action.’’). 2 IT IS SO ORDERED. 3 Dated: April 8, 2021 Casto 0h 4 Hon. Gonzalo P. Curiel 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28