Opinion
19CV2444-JAH-MDD
06-30-2021
RICARDO JACKSON, CDCR #AK-4312, Plaintiff, v. P. COVELLO; J. JUAREZ; SERGEANT ANDERSON; CORRECTIONAL ORRICER MARTINEZE; A. CANEDO; A. TAYLOR; GARCIA; R. FLORES, Defendant.
ORDER GRANTING PLAINTIFF TIME TO AMEND
JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE
Pending before the Court is Plaintiff Ricardo Jackson's (“Plaintiff”) Response to this Court's Order to Show Cause requesting an additional 25 days to file his amended complaint. See ECF 41. Plaintiff, a prisoner currently incarcerated at the California Substance Abuse Treatment Facility (“CSATF”), proceeds pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On February 26, 2020, pursuant to the sua sponte review of Plaintiff's complaint required by 28 U.S.C. §§ 1915(e)(2) and 1915A, this Court found Plaintiff had sufficiently pled only his First Amendment retaliation claims against Defendant Flores. See ECF 23. In that Order, Plaintiff was given the option to either notify the Court of his intention to proceed with his First Amendment retaliation claims against Flores only or to file an amended pleading correcting the deficiencies as to the remainder of the claims. Id.
Instead, Plaintiff filed a Notice of Appeal with the Ninth Circuit (ECF 24), which was dismissed (ECF 35). On November 9, 2020, after Plaintiff's appeal was dismissed, this Court subsequently granted Plaintiff sixty (60) days leave in which to file an Amended Complaint which cures the deficiencies of pleading noted in the Court's February 26, 2020 Order. See ECF 39. However, Plaintiff failed to comply with this Court's Order and neither filed an Amended Complaint nor provided notice of an intent to proceed only against Defendant Flores on his First Amendment Retaliation claims. Therefore, on May 25, 2021, the Court vacated Plaintiff's Option to Amend and ordered him to show cause as to why Plaintiff's First Amendment claims should not be dismissed for failure to prosecute. See ECF 40.
On June 25, 2021, Plaintiff filed a response to the Court's Order to Show Cause, claiming ongoing and chronic medical conditions and the inability to receive adequate care as reasons for failing to comply with this Court's November 9 Order. See ECF 41. Having recently received care however, Plaintiff requests an additional twenty-five (25) days to file an Amended Complaint. The Court finds Plaintiff has demonstrated good cause and now deems it appropriate to grant Plaintiff's request.
Accordingly, IT IS HEREBY ORDERED, Plaintiff may file an Amended Complaint which cures all deficiencies of pleading noted in the Court's February 26, 2020 Order within 35 days from the date of this Order. Plaintiffs Amended Complaint must be complete in itself without reference to his original pleading. Defendants not named and any claims not realleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.”).
IT IS SO ORDERED.