Misch v. Alameda County Sheriff's Office

Opinion

1 2 3 6 7 DAVID MISCH, Case No. 22-cv-05278-HSG

8 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION AND 9 v. FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT; GRANTING 10 ALAMEDA COUNTY SHERIFF’S DEFENDANTS’ REQUEST FOR OFFICE, et al., EXTENSION OF TIME TO FILE 11 DISPOSITIVE MOTION AND FOR Defendants. LEAVE TO FILE AMENDED ANSWER 12 Re: Dkt. Nos. 46, 48 13 14 Plaintiff, an inmate housed at Santa Rita County Jail, has filed a pro se action pursuant to 15 42 U.S.C. § 1983. Now pending before the Court are (1) Plaintiff’s request for clarification of 16 Dkt. No 34, clarification on dismissal of his appeal, and an order allowing Plaintiff to “file an 17 amended complaint as the court instructed him to do earlier on,” Dkt. No. 46, and (2) Defendants’ 18 request for an extension of time to file their dispositive motion and for leave to file an amended 19 answer, Dkt. No. 48. 21 I. Dkt. No. 46 22 Plaintiff’s request for “clarification of Court’s Order (Dkt. No. 34)” is DENIED because it 23 is unclear what relief is being sought. Plaintiff has requested that the Court clarify Dkt. No. 34, 24 Dkt. No. 46 at 1, but does not specify what is unclear about Dkt. No. 34. 25 Plaintiff’s request for “clarification on dismissal of his appeal” is DENIED because the 26 Court cannot provide legal advice. Dkt. No. 46 at 1. Plaintiff’s appeal is pending with the Ninth 27 Circuit Court of Appeals, not with this Court. This Court cannot opine on the appellate 1 Plaintiff’s request that he be allowed to “file an amended complaint as the court instructed 2 him to do earlier on” is DENIED without prejudice for failure to show good cause and for failure 3 to comply with N.D. Cal. L.R. 10-1. Dkt. No. 46 at 1. The Court’s September 6, 2023 Order 4 screened the first amended complaint as follows. The Court found that the first amended 5 complaint’s allegations that the Alameda County Sheriff’s Office (“ACSO”)’s inmate kosher/halal 6 meals prepared by Aramark Corporation are contaminated with non-kosher/halal items and 7 provide insufficient nutrition, and that ACSO Sheriff Sanchez has done nothing to address these 8 issues stated a cognizable First Amendment claim against defendants the Alameda County 9 Sheriff’s Office (“ACSO”), Aramark Corporation, and Sheriff-elect Yesenia Sanchez. The Court 10 dismissed the Eighth Amendment claim with prejudice, and dismissed the equal protection claim 11 with leave to amend because the first amended complaint did not plausibly allege facts that were at 12 least susceptible of an inference of discriminatory intent. See generally Dkt. No. 34. The Court 13 instructed Plaintiff that if he wished to amend his equal protection claim, he should file a second 14 amended complaint by October 3, 2023, addressing the identified deficiencies, and that the failure 15 to do so would result in the first amended complaint (Dkt. No. 13) remaining the operative 16 complaint, and this action proceeding solely on the First Amendment claim against the Alameda 17 County Sheriff’s Office (“ACSO”), Aramark Corporation, and Sheriff-elect Yesenia Sanchez. See 18 generally Dkt. No. 34. More than two months have passed since the deadline to file a second 19 amended complaint. Plaintiff has not shown good cause for the failure to comply with the Court’s 20 deadline and has not attached a proposed second amended complaint as required by N.D. Cal. L.R. 21 10-1.1 Plaintiff’s request for leave of court to file a second amended complaint is DENIED 22 without prejudice. Any renewed motion for leave to file a second amended complaint should be 23 accompanied by a showing of good cause for the failure to comply with the Court’s deadline and 24 be accompanied by a proposed second amended complaint as required by N.D. Cal. L.R. 10-1. 25 // 26

27 1 N.D. Cal. L.R. 10-1 provides that “[a]ny party filing or moving to file an amended pleading must 1 II. Dkt. No. 48 2 Defendants have requested an extension of time to April 5, 2024, to file their dispositive 3 motion, and for leave to file an amended answer. Dkt. No. 48. 4 Good cause being shown, the Court GRANTS Defendants’ request for leave to file an 5 amended answer. Pursuant to the language of Fed. R. Civ. P. 15(a)(2), leave to amend should be 6 freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). Here, Defendants filed their 7 answer on November 16, 2023, and state that, in the course of investigating Plaintiff’s allegations, 8 they have discovered an additional potential affirmative defense. There is no evidence that 9 Defendants have acted with undue delay, bad faith or dilatory motive. Hall v. City of Los Angeles, 10 697 F.3d 1059, 1073 (9th Cir. 2012) (“In the absence of any apparent or declared reason–such as 11 undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the 12 opposing party by virtue of allowance of the amendment, futility of amendment, etc.–the leave 13 sought should, as the rules require, be freely given.”) (internal quotation marks and citations 14 omitted). Defendants shall file their amended answer within seven (7) days of the date of this 15 order. 16 Good cause being shown, the Court GRANTS Defendants’ request for an extension of 17 time to file their dispositive motion. Defendants shall file their dispositive motion by April 5, 18 2024. Plaintiff’s opposition to the dispositive motion must be filed with the Court and served 19 upon Defendants no later than 28 days from the date the motion is filed. Defendants shall file a 20 reply brief in support of their dispositive motion no later than 14 days after the date the opposition 21 is filed. The motion shall be deemed submitted as of the date the reply brief is due. No hearing 22 will be held on the motion. 24 For the reasons set forth above, the Court orders as follows. 25 1. The Court DENIES Plaintiff’s request “clarification of Court’s Order (Dkt. No. 26 34)” because it is unclear what relief is being sought; DENIES Plaintiff’s request for “clarification 27 on dismissal of his appeal” because the Court cannot provide legal advice; and DENIES without 1 2. The Court GRANTS Defendants’ request for an extension of time to file a 2 || dispositive motion and for leave to file an amended answer. 3 3. Defendants shall file their amended answer within seven (7) days of the date of this 4 || order. 5 4. Defendants shall file their dispositive motion by April 5, 2024. Plaintiff's 6 || opposition to the dispositive motion must be filed with the Court and served upon Defendants no 7 || later than 28 days from the date the motion is filed. Defendants shall file a reply brief in support 8 || of their dispositive motion no later than 14 days after the date the opposition is filed. The motion 9 shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the 10 |] motion. 11 This order terminates Dkt. Nos. 46, 48.

13 || Dated: 2/1/2024 HAYWOOD S. GILLIAM, JR. IS United States District Judge 16

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