(PC) Johnston v. CDCR Health Care

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 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) 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) THIRTY (30) DAY DEADLINE 20 Plaintiff Charles E. Johnston (“Plaintiff”) is a state prisoner proceeding pro se and in 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 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 result in a recommendation for dismissal of this action, with prejudice, for failure to obey a court order and for failure to state a claim. (Id. at 10.) Following Plaintiff’s failure to file an amended complaint or otherwise communicate with the Court, on November 2, 2021, the Court issued findings and recommendations to dismiss this action, with prejudice, for failure to state a claim, failure to obey a court order, and failure to prosecute. (ECF No. 10.) Those findings and recommendations are currently pending.

3 On November 1, 2021, Plaintiff filed a motion for enlargement of time and clarification of first amended complaint, which was not docketed with the Court until November 2, 2021. (ECF No. 11.) The motion is signed and dated October 10, 2021, before the expiration of the deadline for Plaintiff to file his amended complaint. (Id. at 1–2.) The motion also seems to indicate that while Plaintiff originally mailed the motion on October 10, he sent it again on October 21, 2021, 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 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 mail with the Court’s findings and recommendations, the Court accepts the motion as timely filed. Further, the Court finds that Plaintiff has presented good cause for a brief extension of time to file his first amended complaint. Accordingly, the Court finds it appropriate to vacate the pending findings and recommendations, issued on November 2, 2021. (ECF No. 10.) After 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 what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

22 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “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 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 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.

IT IS SO ORDERED.

15 Dated: November 3, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE