1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00785-NONE-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF'S MOTIONS

FOR JUDICIAL NOTICE

13 v. (Doc. Nos. 31, 32) 14 STATE OF CALIFORNIA,

ORDER DENYING PLAINTIFF’S MOTION

15 Defendant. FOR EXTENSION OF TIME 16 (Doc. No. 33) 17 18 Pending before the court are Plaintiff’s motions for judicial notice (Doc. Nos. 31-32) and 19 third motion for extension of time to amend his complaint. (Doc. No. 33). Plaintiff Allen 20 Hammler, a current state prisoner, initiated this action by filing a pro se civil rights complaint 21 under 42 U.S.C. § 1983 on June 4, 2019. (Doc. No. 1). Plaintiff’s complaint stemmed from 22 events that occurred on February 21, 2019 and March 13, 2019, when Plaintiff allegedly was 23 served improper meals and assaulted when he put his hand through a food port door. (See 24 generally Id.). On August 13, 2019, the former magistrate judge issued Findings and 25 Recommendations (“F&R”) to deny Plaintiff’s motion to proceed in forma pauperis pursuant to 26 28 U.S.C. § 1915(g). (Doc. No. 10). The F&R was adopted on December 6, 2019. (Doc. No. 27 13). However, on November 16, 2020, upon reconsideration, the December 6, 2019 order was 28 vacated, and Plaintiff was permitted an opportunity to file an amended complaint to address 1 whether he met the imminent danger exception to proceed in forma pauperis. (Doc. No. 20). 2 Specifically, the District Court instructed Plaintiff within 45 days “to file an amended complaint 3 including all factual asserted [sic] in his motions for reconsideration in support of his contention 4 that he was in ‘imminent danger’ at the time his complaint was filed so that the assigned 5 magistrate judge can consider that issue based upon all of the facts that plaintiff can allege in 6 good faith.” (Id. at 2). 7 On January 25, 2021, Plaintiff untimely moved for an extension of time to amend his 8 complaint. (Doc. No. 24). On March 17, 2021, the Court granted Plaintiff an extension of time 9 until April 23, 2021 to file an amended complaint or face “dismissal of this action for failure to 10 prosecute and timely comply with the court’s orders.” (Doc. No. 27 at 2-3). With that Order, the 11 Court also provided Plaintiff with a courtesy copy of his motion for reconsideration and 12 supplemental motion for reconsideration for use in preparing his amended complaint. (Id. at 3, ¶ 13 1). On April 25, 2021, Plaintiff again untimely1 moved for an additional 30-day extension of time 14 to amend his complaint. (Doc. No. 29). Plaintiff claimed due to a mental health episode he was 15 relocated and lost access to his legal materials and thus was unable to prepare any legal 16 documents due to his diminished mental capacity. (Id. at 2). Plaintiff represented in his motion 17 that he now had his “affairs in [o]rder” and was “able to [f]reely continue” to amend his 18 complaint. (Id. at 2-3). Based on Plaintiff’s representations that he could timely amend his 19 complaint, the Court afforded Plaintiff a second extension of time, until May 25, 2021, to file his 20 amended complaint. (Doc. No. 30). In its Order, the Court emphasized that “no further 21 extensions [would] be granted absent extraordinary circumstances” and that Plaintiff’s failure to 22 timely file an amended complaint would result in a recommendation of dismissal of the case. (Id. 23 at 2). 24 Instead of filing an amended complaint, Plaintiff filed a “Motion for Judicial Notice and to 25 Limit Scope of Use” on May 17, 2021. (Doc. No. 31). In the motion, Plaintiff details an 26 1 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the 27 date the prisoner delivers it to prison authorities for forwarding to the clerk of court. See Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir.2000), overruled on other grounds, Carey v. Saffold, 536 28 U.S. 214 (2002). Even affording Plaintiff the benefit of the mailbox rule, the motion was untimely. 1 unrelated underlying state criminal case against Plaintiff that stems from a September 5, 2019 2 incident during which Plaintiff alleges in defense that guards used excessive force on him. (Id.). 3 Plaintiff requests the Court to take “notice” of this incident when weighing whether Plaintiff has 4 established imminent danger to proceed in forma pauperis. (Id. at 4). On June 10, 2021, Plaintiff 5 re-filed a second “Motion for Judicial Notice” that appears to be identical to his May 17, 2021 6 Motion for Judicial Notice. (Doc. No. 32). The Court denies Plaintiff’s Motions for Judicial 7 Notice. (Doc. Nos. 31-32). Whether Plaintiff faces imminent danger “turns on the conditions a 8 prisoner faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 9 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). This Court has further held that even when a 10 complaint has been amended, imminent danger is still assessed based on when the original 11 complaint was filed. Bradford v. Usher, No. 117CV01128DADSAB, 2019 WL 4316899, at *3 12 (E.D. Cal. Sept. 12, 2019). The events described in Plaintiff’s motions for judicial notice do not 13 relate to the claims in Plaintiff’s Complaint and, indeed, occurred after this action was filed. 14 Therefore, they are not relevant in assessing whether Plaintiff faced imminent danger when he 15 filed his original complaint. 16 With regards to Plaintiff’s third untimely motion for extension of time, Plaintiff’s sole 17 argument for an extension is that the Court had not ruled on his earlier motions for judicial notice. 18 (See generally Doc. No. 33). Fed. R. Civ. P. 6(b)(1)(A) provides for extending deadlines for 19 good cause shown, if the request to extend time is made before the existing deadline. After the 20 deadline has passed, a litigant must also show excusable neglect. Id., 6(B)(1)(B). Here, Plaintiff 21 filed his motion seeking an extension of time well after the deadline to amend his complaint had 22 passed. Plaintiff does not address, let alone, demonstrate either good cause or excusable neglect. 23 Further, the Court’s May 10, 2021 Order advised Plaintiff that no further extensions would be 24 granted “absent extraordinary circumstances.” (See Doc. No. 30 at 2). The Court finds Plaintiff 25 waiting for the Court to consider a pleading that describes unrelated events to file his amended 26 complaint does not qualify as “extraordinary circumstances.” Consequently, the Court denies 27 Plaintiff’s third motion for extension of time to amend his complaint. 28 Accordingly, it is ORDERED: 1 1. Plaintiff's duplicate Motions for Judicial Notice and to Limit Scope of Use (Doc. 2 Nos. 31, 32) are DENIED. 3 2. Plaintiffs third Motion for Extension of Time (Doc. No. 33) is DENIED. 4 5 IT IS SO ORDERED. | pated: _tune 23, 2021 Mihaw. Wh. foareh Zaskth 7 HELENA M. BARCH-KUCHTA 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28