Khan v. Payton

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

11 MUHAMMAD KHAN, Case No. 20-cv-03086 BLF (PR)

12 Plaintiff, ORDER VACATING ORDER DISMISSING NON-COGNIZABLE 13 v. CLAIMS AND BRIEFING SCHEDULE; GRANTING MOTION 14 FOR EXTENSION OF TIME TO M. PAYTON, FILE SECOND AMENDED 15 COMPLAINT Defendant. 16 (Docket No. 34)

17 18 Plaintiff, a state prisoner, filed a pro se civil rights action pursuant to 42 U.S.C. § 19 1983 against an officer at San Quentin State Prison. Dkt. No. 1. On June 14, 2021, the 20 Court screened Plaintiff’s first amended complaint and granted leave to amend an equal 21 protection claim. Dkt. No. 22. In the alternative, Plaintiff was advised that he may file 22 notice to proceed solely on the cognizable claims identified in the order. Id. at 8. Plaintiff 23 failed to file a second amended complaint after being granted three extensions of time. 24 Dkt. Nos. 25, 28, 32. Therefore on May 11, 2022, the Court dismissed non-cognizable 25 claims and set briefing on the cognizable claims. Dkt. No. 33. 26 On May 13, 2022, the Court received another motion for extension of time from 27 Plaintiff, who states that he has not received his legal property from the CDCR and that his 1 mailing on May 2, 2022. Id. at 2. 2 Because it appears that Plaintiff’s motion for another extension of time was filed on 3 the date his second amended complaint was due, i.e., May 2, 2022, the Court finds good 4 cause to grant the motion. Accordingly, the last court order shall be vacated along with the 5 briefing schedule therein and Plaintiff’s motion shall be granted. 6 7 CONCLUSION 8 For the foregoing reasons, the Court orders as follows: 9 1. The Court’s “Order Dismissing Non-Cognizable Claims” is VACATED. 10 Dkt. No. 33. Accordingly, the briefing schedule therein is also vacated. 11 2. Plaintiff’s motion for an extension of time to file a second amended 12 complaint is GRANTED. Dkt. No. 34. Because it has been nearly a year since the Court 13 dismissed the first amended complaint on June 13, 2021, and granted Plaintiff leave to file 14 a second amended complaint, no further extensions of time shall be granted. 15 No later than forty-two (42) days for the time this order is filed, Plaintiff shall file 16 a second amended complaint using the court’s form complaint to correct the deficiencies 17 discussed therein with respect to the equal protection claim against Defendant Payton. The 18 second amended complaint must include the caption and civil case number used in this 19 order, i.e., Case No. C 20-cv-03086 BLF (PR), and the words “SECOND AMENDED 20 COMPLAINT” on the first page. Plaintiff must answer all the questions on the form in 21 order for the action to proceed. Plaintiff is reminded that the second amended complaint 22 supersedes the original and the first amended complaints, and Plaintiff may not make 23 references to either the original or first amended complaint. Claims not included in the 24 second amended complaint are no longer claims and defendants not named in an amended 25 complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 26 Cir.1992). 1 || solely on the cognizable claims discussed in the court’s screening order, i.e., First 2 Amendment claim for the denial of religious freedom, Eighth Amendment claim for the 3 denial of food, violation of due process, and state law claims for intentional infliction of 4 || emotional distress and negligence by SQSP, and strike the equal protection claim from the 5 || amended complaint. Dkt. No. 22 at 4-5. 6 Failure to respond in accordance with this order by filing a second amended 7 || complaint in the time provided will result in the dismissal of the equal protection 8 || claim for failure to state a claim. This action will proceed on the cognizable claims 9 || discussed above. As stated above, no further extensions of time to file a second 10 || amended complaint shall be granted. 11 This order terminates Docket No. 34. 3s 12 IT IS SO ORDERED.

|| Dated: _ May 18, 2022 _ ho Phy homer) 4 BETH LABSON FREEMAN United States District Judge 15 16

Z 18 19 20 21 22 23 24 25 Order Vacating Court Order; Granting EOT to file SAC PRO-SE\BLF\CR.20\03086Khan_vacate&eot-SAC 26 27