Opinion
22-cv-05278-HSG
02-01-2024
DAVID MISCH, Plaintiff, v. ALAMEDA COUNTY SHERIFF'S OFFICE, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION AND FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT; GRANTING DEFENDANTS' REQUEST FOR EXTENSION OF TIME TO FILE DISPOSITIVE MOTION AND FOR LEAVE TO FILE AMENDED ANSWER
RE: DKT. NOS. 46, 48
HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE.
Plaintiff, an inmate housed at Santa Rita County Jail, has filed a pro se action pursuant to 42 U.S.C. § 1983. Now pending before the Court are (1) Plaintiff's request for clarification of Dkt. No 34, clarification on dismissal of his appeal, and an order allowing Plaintiff to “file an amended complaint as the court instructed him to do earlier on,” Dkt. No. 46, and (2) Defendants' request for an extension of time to file their dispositive motion and for leave to file an amended answer, Dkt. No. 48.
DISCUSSION
I. Dkt. No. 46
Plaintiff's request for “clarification of Court's Order (Dkt. No. 34)” is DENIED because it is unclear what relief is being sought. Plaintiff has requested that the Court clarify Dkt. No. 34, Dkt. No. 46 at 1, but does not specify what is unclear about Dkt. No. 34.
Plaintiff's request for “clarification on dismissal of his appeal” is DENIED because the Court cannot provide legal advice. Dkt. No. 46 at 1. Plaintiff's appeal is pending with the Ninth Circuit Court of Appeals, not with this Court. This Court cannot opine on the appellate proceedings.
Plaintiff's request that he be allowed to “file an amended complaint as the court instructed him to do earlier on” is DENIED without prejudice for failure to show good cause and for failure to comply with N.D. Cal. L.R. 10-1. Dkt. No. 46 at 1. The Court's September 6, 2023 Order screened the first amended complaint as follows. The Court found that the first amended complaint's allegations that the Alameda County Sheriff's Office (“ACSO”)'s inmate kosher/halal meals prepared by Aramark Corporation are contaminated with non-kosher/halal items and provide insufficient nutrition, and that ACSO Sheriff Sanchez has done nothing to address these issues stated a cognizable First Amendment claim against defendants the Alameda County Sheriff's Office (“ACSO”), Aramark Corporation, and Sheriff-elect Yesenia Sanchez. The Court dismissed the Eighth Amendment claim with prejudice, and dismissed the equal protection claim with leave to amend because the first amended complaint did not plausibly allege facts that were at least susceptible of an inference of discriminatory intent. See generally Dkt. No. 34. The Court instructed Plaintiff that if he wished to amend his equal protection claim, he should file a second amended complaint by October 3, 2023, addressing the identified deficiencies, and that the failure to do so would result in the first amended complaint (Dkt. No. 13) remaining the operative complaint, and this action proceeding solely on the First Amendment claim against the Alameda County Sheriff's Office (“ACSO”), Aramark Corporation, and Sheriff-elect Yesenia Sanchez. See generally Dkt. No. 34. More than two months have passed since the deadline to file a second amended complaint. Plaintiff has not shown good cause for the failure to comply with the Court's deadline and has not attached a proposed second amended complaint as required by N.D. Cal. L.R. 10-1. Plaintiff's request for leave of court to file a second amended complaint is DENIED without prejudice. Any renewed motion for leave to file a second amended complaint should be accompanied by a showing of good cause for the failure to comply with the Court's deadline and be accompanied by a proposed second amended complaint as required by N.D. Cal. L.R. 10-1.
N.D. Cal. L.R. 10-1 provides that “[a]ny party filing or moving to file an amended pleading must reproduce the entire proposed pleading and may not incorporate any part of a prior pleading by reference.” N.D. Cal. L.R. 10-1.
II. Dkt. No. 48
Defendants have requested an extension of time to April 5, 2024, to file their dispositive motion, and for leave to file an amended answer. Dkt. No. 48.
Good cause being shown, the Court GRANTS Defendants' request for leave to file an amended answer. Pursuant to the language of Fed.R.Civ.P. 15(a)(2), leave to amend should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). Here, Defendants filed their answer on November 16, 2023, and state that, in the course of investigating Plaintiff's allegations, they have discovered an additional potential affirmative defense. There is no evidence that Defendants have acted with undue delay, bad faith or dilatory motive. Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012) (“In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be freely given.”) (internal quotation marks and citations omitted). Defendants shall file their amended answer within seven (7) days of the date of this order.
Good cause being shown, the Court GRANTS Defendants' request for an extension of time to file their dispositive motion. Defendants shall file their dispositive motion by April 5, 2024. Plaintiff's opposition to the dispositive motion must be filed with the Court and served upon Defendants no later than 28 days from the date the motion is filed. Defendants shall file a reply brief in support of their dispositive motion no later than 14 days after the date the opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion.
CONCLUSION
For the reasons set forth above, the Court orders as follows.
1. The Court DENIES Plaintiff's request “clarification of Court's Order (Dkt. No. 34)” because it is unclear what relief is being sought; DENIES Plaintiff's request for “clarification on dismissal of his appeal” because the Court cannot provide legal advice; and DENIES without prejudice Plaintiff's request for leave to file an amended complaint. Dkt. No. 46.
2. The Court GRANTS Defendants' request for an extension of time to file a dispositive motion and for leave to file an amended answer.
3. Defendants shall file their amended answer within seven (7) days of the date of this order.
4. Defendants shall file their dispositive motion by April 5, 2024. Plaintiff's opposition to the dispositive motion must be filed with the Court and served upon Defendants no later than 28 days from the date the motion is filed. Defendants shall file a reply brief in support of their dispositive motion no later than 14 days after the date the opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion.
This order terminates Dkt. Nos. 46, 48.
IT IS SO ORDERED.