(PC) Magdaleno v. Cates

Opinion

MIGUEL A. MAGDALENO, Case No. 1:23-cv-00952-ADA-BAM (PC) Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS v. (ECF No. 10)

CATES, ORDER CONSTRUING PLAINTIFF’S OBJECTIONS AS MOTION FOR Defendant. EXTENSION OF TIME TO FILE AMENDED COMPLAINT (ECF No. 11)

ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO FILE AN (ECF No. 11) THIRTY (30) DAY DEADLINE Plaintiff Miguel A. Magdaleno (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 20, 2023, 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. 8.) Following Plaintiff’s failure to file a first amended complaint or a notice of voluntary dismissal, the Court issued findings and recommendations that this action be dismissed, with prejudice, for failure to state a claim, failure to obey court orders, and failure to prosecute. (ECF No. 10.) Plaintiff was directed to file any objections to the findings and recommendations within fourteen (14) days. (Id.) On September 21, 2023, Plaintiff filed objections to the findings and recommendations. (ECF No. 11.) In his objections, Plaintiff states that he wrote to the Clerk for an extension because he is communicating with the institution to receive copies of his evidence. Plaintiff states that by the time the extension is granted he should have his evidence to present to the Court. (Id.) The Court did not receive Plaintiff’s previous request for extension of time. Nevertheless, having considered Plaintiff’s objections, and in light of Plaintiff’s efforts to collect evidence to continue prosecuting this action, the Court finds it appropriate to vacate the pending findings and recommendations. However, in order to proceed with this action, Plaintiff must file a first amended complaint in compliance with the Court’s July 20, 2023 screening order, rather than simply filing additional evidence that Plaintiff argues supports his claims. If Plaintiff fails to file a first amended complaint, there is no operative complaint on which this action can continue, and the Court will again recommend dismissal of this action for failure to prosecute and failure to state a claim. Plaintiff’s 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). Any amended complaint shall be limited to 25 pages in length, excluding exhibits. Plaintiff may not join unrelated claims. Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 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.” Local Rule 220. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations issued on September 5, 2023, (ECF No. 10), are VACATED; 2. Plaintiff’s objections, (ECF No. 11), are CONSTRUED as a motion for extension of time to file an amended complaint; 3. Plaintiff’s motion for extension of time to file an amended complaint, (ECF No. 11), is GRANTED; 4. The Clerk’s Office shall send Plaintiff a complaint form; 5. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first amended complaint curing the deficiencies identified by the Court’s July 20, 2023 screening order (or file a notice of voluntary dismissal); 6. Any amended complaint shall be limited to 25 pages in length, excluding exhibits; and 7. If Plaintiff fails to file a second amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to prosecute, failure to obey a court order, and failure to state a claim. IT IS SO ORDERED.

Dated: September 22, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE