Best v. Virgil Smith

• Court: District Court, N.D. California
• Decided: March 5, 2021
• Docket: 4:19-cv-02252
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 BRIAN BEST, Case No. 4:19-cv-02252-YGR

7 Plaintiff, ORDER DENYING MOTION FOR EXTENSION OF TIME, DENYING MOTION FOR 8 v. SANCTIONS, AND DEEMING WITHDRAWN DISCOVERY LETTER BRIEF 9 VIRGIL SMITH, Re: Dkt. Nos. 83, 85, 88 Defendant. 10

11 12 Pro se plaintiff Brian Best filed a motion for extension of time in which to file a third 13 amended complaint on January 8, 2021, (Dkt. No. 83.) and a motion for sanctions filed on January 14 29, 2021. (Dkt. No. 85.) Defendant Virgil Smith filed a discovery letter brief detailing ongoing 15 discovery issues in this matter. (Dkt. No. 88.) The motions came on for hearing and were heard 16 by the Court on March 5, 2021 by Zoom videoconference. 17 Having carefully considered the briefing and arguments submitted in this matter, and for 18 the reasons set forth in full detail on the record, the Court HEREBY ORDERS as follows: the motion 19 for extension of time in which to file a third amended complaint is DENIED; the motion for 20 sanctions is DENIED; and the discovery letter brief is DEEMED WITHDRAWN in light of 21 defendant’s counsel’s representations at the hearing. 22 Moreover, the Court further STATES and ORDERS as follows: 23  The Court REFERS discovery in this action to Magistrate Judge Donna M. Ryu; 24  By noon on Monday, March 8, 2021, the parties are to meet and confer and 25 exchange two-pages each detailing any and all ongoing discovery disputes that they 26 would like to address with Magistrate Judge Ryu. Counsel for defendant is 27 thereafter instructed to combine these pages together and to file this on the docket 1  To the extent Mr. Best wishes to amend his complaint, he shall file a separate 2 motion requesting leave to file a third amended complaint. Any such motion shall 3 follow the Federal Rules of Civil Procedure (specifically, Rules 15 and 16) and 4 shall detail the good cause, if any, for the filing of the third amended complaint. 5 Best is instructed to ensure that the proposed third amended complaint is filed as an 6 attachment to his motion. Mr. Best is further reminded that instructions on drafting 7 a third amended complaint can be found in the Court’s previous Order at Docket 8 Number 74 at pages 2 to 3, which relevantly states as follows: 9 Accordingly, the Court provides Mr. Best leave to amend his 10 operative complaint in order to give him the opportunity to file a simple, concise and direct Third Amended Complaint which: 11 1. States clearly and simply each claim he seeks to bring in federal 12 court as required under Rule 8, and he should:

13 a. Set forth each claim in a separate numbered paragraph;

14 b. Identify each Defendant and the specific action or actions each Defendant took, or failed to take, that allegedly caused 15 the deprivation of Plaintiff's constitutional rights; and

16 c. Identify the injury resulting from each claim;

17 2. Explains how he has exhausted his administrative remedies as to each claim as against each Defendant before he filed this action; 18 3. Does not make conclusory allegations linking each Defendant by 19 listing them as having “direct involvement” to his claims without specifying how each Defendant was linked through their actions; 20 4. Does not name any Defendant who did not act but is linked solely 21 in his or her respondent superior capacity or against whom Plaintiff cannot allege facts that would establish either supervisorial or 22 municipal liability; and

23 5. Does not name Doe Defendants because any claims against Doe Defendants were dismissed without prejudice to Mr. Best moving for 24 leave to amend to add them as named defendants once he learns their identities. 25 . . . . Because the Third Amended Complaint completely replaces the 26 original complaint, Mr. Best must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), 27 cert. denied, 506 U.S. 915 (1992). He may not incorporate material dismissed with prejudice, but may include any such claims or 1 defendants that were only dismissed without prejudice (e.g. the 5 Monell claim). This Order terminates Docket Numbers 83, 85, and 88. 3 IT Is SO ORDERED. 4 Dated: March 5, 2021 5 6 YVONNE Connon □□□□ 7 UNITED STATES DISTRICT JUDGE

8 9 CC: MAGREF EMAIL; MAGISTRATE JUDGE DONNA M. RYU

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