Yablonsky v. California Department of Correction & Rehabilitation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 John Henry YABLONSKY Case No.: 18cv1122-CAB-AGS 12 Plaintiff, ORDER REGARDING NOTICE OF 13 v. OBJECTION [Doc. No. 51] 14 CALIFORNIA DEPARTMENT OF CORRECTION AND 15 REHABILITATION, 16 Defendants. 17 18 On October 7, 2019, Defendants D. Powell, G. Martinez, J. Robles, D. McGuire, 19 R. Blahnik, and C. Tiscarnia (“Defendants”) filed a motion to dismiss Plaintiff’s First 20 Amended Complaint (“FAC”). [Doc. No. 39.] On June 2, 2020, Magistrate Judge 21 Andrew G. Schopler prepared a Report and Recommendation (“Report”) recommending 22 that the motion to dismiss be granted in part and denied in part. [Doc. No. 39.] On July 23 14, 2020, this Court issued an order adopting the Report, granting in part and denying in 24 part the motion to dismiss the FAC, and giving Plaintiff until August 7, 2020, to file a 25 Second Amended Complaint (“SAC”). [Doc. No. 43.] The order also stated that if 26 Plaintiff did not file an SAC, then Defendants were to answer the FAC (as amended by 27 the Court’s order ) by August 21, 2020. [Doc. No. 43 at 3.] 28 1 On July 24, 2020, Plaintiff filed a Motion Entering Objections pursuant to §636 2 ||Regarding Courts July 14, 2020 Order. [Doc. No. 46.] On July 28, 2020, the Court 3 ||issued an order denying the motion entering objections, and indicated that the only claim 4 the FAC that had not been dismissed was the Free Speech Claim. [Doc. No. 48 at 2.] 5 |}On August 11, 2020, Plaintiff filed an objection to the July 28 order, arguing that the 6 || Retaliation claim in the FAC — other than the reading legal mail claim — also was not 7 dismissed. [Doc. No. 51.] Plaintiff is correct. The Retaliation claim in the FAC — except 8 || for the reading legal mail claim — was not dismissed. [See Doc. No. 39 at 12, 16; Doc. 9 || No. 43 at 2-3.] 10 Given the Court’s error in the July 28 order, Plaintiff will be given ONE FINAL 11 |} OPPORTUNITY to file a SAC. Plaintiff shall have until September 4, 2020 to file a 12 ||SAC. Plaintiff is again reminded that the SAC must be complete in itself without 13 || reference to his original pleading. Defendants not named and any claims not re-alleged in 14 || the Second Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 15 || Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 16 || 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 17 || F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which 18 || are not re-alleged in an amended pleading may be “considered waived if not repled.”’) 19 If Plaintiff does not file a SAC by September 4, 2020, then the case will proceed as 20 || to the remaining claims in the FAC (the Free Speech claim and the Retaliation claim-- 21 except for the reading legal mail claim), which Defendants are required to answer by 22 September 28, 2020. 23 IT IS SO ORDERED. 24 ||Dated: August 14, 2020 (WE 25 Hon. Cathy Ann Bencivengo 26 United States District Judge 27 28