Jackson v. Covello et.al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO JACKSON, CDCR #AK- Case No.: 19CV2444-JAH-MDD 4312, 12 ORDER GRANTING PLAINTIFF Plaintiff, 13 TIME TO AMEND v. 14 P. COVELLO; J. JUAREZ; SERGEANT 15 ANDERSON; CORRECTIONAL 16 ORRICER MARTINEZE; A. CANEDO; A. TAYLOR; GARCIA; R. FLORES, 17 Defendant. 18

19 Pending before the Court is Plaintiff Ricardo Jackson’s (“Plaintiff”) Response to this 20 Court’s Order to Show Cause requesting an additional 25 days to file his amended 21 complaint. See ECF 41. Plaintiff, a prisoner currently incarcerated at the California 22 Substance Abuse Treatment Facility (“CSATF”), proceeds pro se in this civil rights action 23 pursuant to 42 U.S.C. § 1983. On February 26, 2020, pursuant to the sua sponte review of 24 Plaintiff’s complaint required by 28 U.S.C. §§ 1915(e)(2) and 1915A, this Court found 25 Plaintiff had sufficiently pled only his First Amendment retaliation claims against 26 Defendant Flores. See ECF 23. In that Order, Plaintiff was given the option to either notify 27 the Court of his intention to proceed with his First Amendment retaliation claims against 28 1 Flores only or to file an amended pleading correcting the deficiencies as to the remainder 2 of the claims. Id. 3 Instead, Plaintiff filed a Notice of Appeal with the Ninth Circuit (ECF 24), which 4 was dismissed (ECF 35). On November 9, 2020, after Plaintiff’s appeal was dismissed, this 5 Court subsequently granted Plaintiff sixty (60) days leave in which to file an Amended 6 Complaint which cures the deficiencies of pleading noted in the Court’s February 26, 2020 7 Order. See ECF 39. However, Plaintiff failed to comply with this Court’s Order and neither 8 filed an Amended Complaint nor provided notice of an intent to proceed only against 9 Defendant Flores on his First Amendment Retaliation claims. Therefore, on May 25, 2021, 10 the Court vacated Plaintiff’s Option to Amend and ordered him to show cause as to why 11 Plaintiff’s First Amendment claims should not be dismissed for failure to prosecute. See 12 ECF 40. 13 On June 25, 2021, Plaintiff filed a response to the Court’s Order to Show Cause, 14 claiming ongoing and chronic medical conditions and the inability to receive adequate care 15 as reasons for failing to comply with this Court’s November 9 Order. See ECF 41. Having 16 recently received care however, Plaintiff requests an additional twenty-five (25) days to 17 file an Amended Complaint. The Court finds Plaintiff has demonstrated good cause and 18 now deems it appropriate to grant Plaintiff’s request. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Accordingly, IT IS HEREBY ORDERED, Plaintiff may file an Amended 2 ||Complaint which cures all deficiencies of pleading noted in the Court’s February 26, 2020 3 || Order within 35 days from the date of this Order. Plaintiff's Amended Complaint must be 4 ||complete in itself without reference to his original pleading. Defendants not named and 5 claims not realleged in the Amended Complaint will be considered waived. See S.D. 6 CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 7 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 8 || Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 9 ||leave to amend which are not re-alleged in an amended pleading may be “considered 10 || waived if not repled.”). 11 IT IS SO ORDERED. 12

14 ||/DATED: — 6/30/2021 15 J OHN A. HOUSTON 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28