Free Order on Motion for Extension of Time to File - District Court of California - California

Case 3:08-cv-00043-JAH-LSP

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Filed 02/04/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
LEE FOY, CDCR #C-01539, Plaintiff, vs. MARISOIL, Nurse, Defendant. I. PROCEDURAL HISTORY Lee Foy ("Plaintiff"), a state prisoner currently incarcerated at Richard J. Donovan Correctional Facility ("RJDCF") in San Diego, California and proceeding pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983 in the Eastern District of California. On January 3, 2008, the case was transferred to this Court for lack of proper venue. However, because Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); or file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), the case was dismissed the case on January 11, 2008 [Doc. No. 2]. Plaintiff was granted forty-five (45) days, however, to either prepay the full $350 filing fee, or request leave to proceed IFP on a form provided by the Clerk of Court.
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Civil No.

08-0043 JAH (LSP)

ORDER GRANTING PLAINTIFF'S MOTION REQUESTING EXTENSION OF TIME TO FILE MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 4]

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08cv0043

Case 3:08-cv-00043-JAH-LSP

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Approximately two weeks later, on February 1, 2008, Plaintiff submitted a letter requesting an additional 30 days leave in which to complete his IFP and acquire the prison trust account statements required by 28 U.S.C. § 1915(a)(2) ("A prisoner seeking to bring a civil action ... without payment of fees ... in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement ... for the prisoner for the 6month period immediately preceding the filing of the complaint."). Plaintiff seeks additional time because RJDCF officials "have [him] on hold," and are "delay[ing] the process." (See Pl.'s Letter at 2.) II. STANDARD OF REVIEW This is Plaintiff's first request for an extension of time, he is proceeding without counsel and his request is timely. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (court has a "duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to . . . technical procedural requirements."). Thus, the Court finds good cause to grant Plaintiff's request. "`Strict time limits . . . ought not to be insisted upon' where restraints resulting from a pro se prisoner plaintiff's incarceration prevent timely compliance with court deadlines." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (reversing district court's dismissal of prisoner's amended pro se complaint as untimely where mere 30-day delay was result of prison-wide lockdown). III. CONCLUSION AND ORDER Accordingly, the Court hereby GRANTS Plaintiff's Letter/Motion Requesting an Extension of Time [Doc. No. 4]. Plaintiff is hereby ORDERED to either prepay the entire $350 civil filing fee pursuant to 28 U.S.C. § 1914(a), or complete and file the Court-approved form "Motion to Proceed In Forma Pauperis," along with a certified copy of his prison trust fund statement, no later than Monday, March 31, 2008. ///
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Case 3:08-cv-00043-JAH-LSP

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Filed 02/04/2008

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If Plaintiff chooses not to pay the filing fee or fails to submit his IFP Motion within that time, this action shall remain dismissed for the reasons set forth in the Court's January 11, 2008 Order. IT IS SO ORDERED.

DATED: February 4, 2008

JOHN A. HOUSTON United States District Judge

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08cv0043