(PC) Johnston v. CDCR Health Care ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES E. JOHNSTON, Case No. 1:21-cv-01322-NONE-BAM (PC) 12 Plaintiff, ORDER GRANTING MOTION FOR EXTENSION OF TIME TO AMEND 13 v. COMPLAINT (ECF No. 11) 14 CDCR HEALTH CARE, et al., ORDER VACATING FINDINGS AND 15 Defendants. RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR FAILURE 16 TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE TO 17 PROSECUTE (ECF No. 10) 18 THIRTY (30) DAY DEADLINE 19 20 Plaintiff Charles E. Johnston (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 22 On September 13, 2021, the Court issued a screening order granting Plaintiff leave to file 23 a first amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 7.) 24 The Court expressly warned Plaintiff that the failure to comply with the Court’s order would 25 result in a recommendation for dismissal of this action, with prejudice, for failure to obey a court 26 order and for failure to state a claim. (Id. at 10.) Following Plaintiff’s failure to file an amended 27 complaint or otherwise communicate with the Court, on November 2, 2021, the Court issued 28 findings and recommendations to dismiss this action, with prejudice, for failure to state a claim, 1 failure to obey a court order, and failure to prosecute. (ECF No. 10.) Those findings and 2 recommendations are currently pending. 3 On November 1, 2021, Plaintiff filed a motion for enlargement of time and clarification of 4 first amended complaint, which was not docketed with the Court until November 2, 2021. (ECF 5 No. 11.) The motion is signed and dated October 10, 2021, before the expiration of the deadline 6 for Plaintiff to file his amended complaint. (Id. at 1–2.) The motion also seems to indicate that 7 while Plaintiff originally mailed the motion on October 10, he sent it again on October 21, 2021, 8 due to issues with the mail. (Id. at 3.) 9 In his motion, Plaintiff requests a 30 to 60-day extension of time to file his first amended 10 complaint, to allow him to review his case with a jailhouse lawyer. (Id.) 11 As it appears Plaintiff attempted to timely file his motion, and the motion crossed in the 12 mail with the Court’s findings and recommendations, the Court accepts the motion as timely 13 filed. Further, the Court finds that Plaintiff has presented good cause for a brief extension of time 14 to file his first amended complaint. Accordingly, the Court finds it appropriate to vacate the 15 pending findings and recommendations, issued on November 2, 2021. (ECF No. 10.) After 16 Plaintiff files the first amended complaint, it will be screened in due course. 17 Plaintiff’s first amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state 18 what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, 19 Iqbal, 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be 20 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 21 (citations omitted). 22 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 23 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 24 “buckshot” complaints). 25 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 26 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 27 complaint must be “complete in itself without reference to the prior or superseded pleading.” 28 Local Rule 220. This includes any exhibits or attachments Plaintiff wishes to incorporate by 1 reference. 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. Plaintiff’s motion for extension of time to file his first amended complaint, (ECF No. 11), 4 is GRANTED; 5 a. Plaintiff is granted thirty (30) days from the date of service of this order in which 6 to file a first amended complaint; 7 b. The Clerk’s Office shall send Plaintiff a complaint form; and 8 c. If Plaintiff fails to file a first amended complaint in compliance with this 9 order, this action will be dismissed for failure to prosecute and failure to obey 10 a court order; and 11 2. The findings and recommendations issued on November 2, 2021, (ECF No. 10), are 12 VACATED. 13 IT IS SO ORDERED. 14 15 Dated: November 3, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28