Gregory Franklin v. J. Jimenez

MEMORANDUM

Gregory Allen Franklin, a California state prisoner, appeals pro se from the district court’s order dismissing his 42 U.S.C. § 1983 action alleging constitutional violations. We have jurisdiction under 28 U.S.C. § 1291 . We review for an abuse of discretion.. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.2010). We reverse and remand.

Franklin’s motion, filed in the district court on February, 21, 2013, is most properly treated as a motion for an extension of time to file a Second Amended Complaint. The district court abused its discretion by denying Franklin’s motion, because Franklin’s assertion that he had not received the district court’s order dismissing his First Amended Complaint with leave to amend demonstrated that his failure to file a Second Amended Complaint within 45 days was excusable. See Fed. R.Civ.P. 6(b)(1)(B) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect.”); In re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir.2007) (setting forth factors a district court must…