Albin v. R.J. Donovan

• Court: District Court, S.D. California
• Decided: March 1, 2022
• Docket: 3:20-cv-00471
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAWN ALBIN, Case No. 3:20-cv-00471-JAH-MSB CDCR #AV-4808, 12

Plaintiff, 13 ORDER DENYING MOTION TO vs. VACATE [ECF No. 25] and MOTION 14 FOR EXTENTION OF TIME [ECF R.J. DONOVAN, SAN DIEGO JAIL, 15 No. 26] AS MOOT Defendants. 16 17 I. Introduction 18 On March 12, 2020, Shawn Albin (“Plaintiff” or “Albin”), who is proceeding pro 19 se, was incarcerated at R.J. Donovan State Prison and filed a civil rights complaint pursuant 20 to 42 U.S.C. § 1983 in this Court. ECF No. 1. Albin did not prepay the civil filing fee 21 required by 28 U.S.C. § 1914(a), nor did he file a Motion to Proceed In Forma Pauperis 22 (“IFP”) pursuant to 28 U.S.C. § 1915(a). The Court dismissed the action on May 5, 2020, 23 because Albin had failed to either pay the $400.00 civil filing fee or file an IFP motion. 24 ECF No. 2. Albin was given forty-five (45) days to either pay the filing fee or submit a 25 properly supported IFP motion. Id. 26 On June 29, 2020, Albin filed an IFP motion. ECF No. 3. The Court denied the IFP 27 motion pursuant to 28 U.S.C. § 1915(g) because three of Albin’s prior § 1983 cases were 28 1 dismissed for being frivolous, malicious, or failing to state a claim, the “three strikes” rule. 2 ECF No. 4. The case was dismissed. Id. 3 On July 27, 2020, Albin appealed the dismissal to the Ninth Circuit Court of 4 Appeals, which concluded that one of the cases this Court relied on to dismiss the case 5 under § 1915(g) was not a strike. ECF Nos. 6–13. The case was remanded to this Court for 6 further proceedings. ECF No. 13. 7 In its March 19, 2021, the Court explained to Albin that he had not included a 8 certified copy of his trust account statement in support of his IFP motion, which is required 9 by 28 U.S.C. § 1915(a)(2). ECF No. 14. As a result, the Court could not proceed until Albin 10 either paid the civil filing fee or qualified to proceed in forma pauperis. Id. In addition, the 11 Court noted that Albin’s Complaint contained no factual allegations and was therefore 12 subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failing to 13 state a claim. Id. at 3-5. The Court gave Albin forty-five (45) days to either pay the fee or 14 submit a properly supported IFP motion. Id. Albin was granted two extensions of time to 15 comply with the Court’s March 19, 2021 Order. ECF Nos. 15, 18. In its August 12, 2021 16 Order extending time, the Court directed Albin to pay the civil filing fee and a Motion for 17 Leave to File an Amended Complaint together with a proposed First Amended Complaint 18 by October 15, 2021. ECF No. 18 at 4. 19 Albin did not comply with the Court’s August 12, 2021 Order and on November 18, 20 2021, the Court dismissed the action for failing to prosecute and entered judgment. ECF 21 Nos. 19–20. On December 1, 2021, Albin filed a document entitled “Motion for Extension 22 of Time to File,” which the Court construed as a motion for relief from judgement pursuant 23 to Rule 60(b). ECF No 24. So construed, the Court granted Albin’s motion for relief from 24 judgment and gave him 45-days from date of the order within which to pay the civil filing 25 fee or file an IFP motion. Id. On December 22, 2021, Albin filed a motion to vacate the 26 Court’s November 18, 2021 dismissal Order and a motion for extension of time. ECF Nos. 27 25–26. 28 / / / 1 Discussion 2 In the two motions he has most recently filed (ECF Nos. 25-26), Albin asks the 3 || Court to reconsider its November 18, 2021 dismissal order, and grant him an extension of 4 || time to file an IFP motion and an Amended Complaint. (/d.) The Court has already granted 5 || Albin the relief he seeks. In its January 18, 2022 Order, the Court construed the application 6 || for extension of time he filed on December 8, 2021 as a motion for relief from judgment, 7 || granted the motion, and granted him an extension of time to pay the filing fee and file an 8 |}amended complaint. See ECF No. 24. Albin has until March 4, 2022, to comply with the 9 || Court’s January 18, 2022 order. 10 Conclusion and Order 11 Accordingly, the Court DENIES Albin’s motion to vacate and his motion for an 12 |} extension of time (ECF Nos. 25—26). Albin is reminded that any Amended Complaint must 13 complete by itself without reference to the original Complaint. See S.D. Cal. CivLR 14 || 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co. Inc., 896 F.2d 1542, 1546 (9th Cir. 15 |} 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 16 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are 17 || not re-alleged in an amended pleading may be “considered waived if not repled.’’). 18 If Albin fails to comply with this Order, the Court will re-enter a final Order 19 || dismissing this civil action based on his failure to prosecute in compliance with a court 20 || order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If 21 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 22 convert the dismissal of the complaint into dismissal of the entire action.”’). No further 23 || extensions of time will be granted. 24 IT IS SO ORDERED. 25 || Dated: March 1, 2022 Mk 26 yon. John A. Houston 27 Jnited States District Judge 28 3