Gibson v. Chief Medical Officer of California Department of Corrections et al

Filing 24

ORDER signed by Circuit Judge Marsha S. Berzon on 8/25/2010 ORDERING that Plaintiff's 21 Motion for Extension of Time to file a Fourth Amended Complaint is GRANTED in part and DENIED in part. If Plaintiff chooses to file a fourth amended compl aint, he must do so no later than October 11, 2010. Plaintiff's 22 Motion to Authenticate the Courts April 9, 2010 order is granted. Plaintiff's 20 Motion for 90-Day Extension of Time is DENIED as moot. No further extensions of time t o file an amended complaint will be granted. If Plaintiff fails to file an amended complaint or a Notice of Dismissal by October 11, 2010, the Court shall, without further notice, order the Clerk of the Court to dismiss this action. The dismissal will count as a "strike" under the "3-strikes" provision of 28 U.S.C. 1915(g).(Duong, D)

(PC) Gibson v. Chief Medical Officer of California Department of Corrections et al

Doc. 24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 P lain tiff Robert D. Gibson, who is currently confined in the Salinas Valley Prison in 17 S o led a d , CA, has filed a Motion for Extension of Time to File a Fourth Amended Complaint. 18 (D k t. #21). Gibson has also filed a Motion to Authenticate the Court's April 9, 2010 order. 19 (D k t. #22). 20 In its July 8, 2010 order, the Court screened Gibson's third amended pro se civil rights 21 c o m p l a in t pursuant to 28 U.S.C. § 1915A and determined that the allegations in the 22 c o m p l a in t were insufficient to state a claim for relief under the Eighth Amendment, 42 23 U .S .C . § 1997e, and Cal. Penal Code §§ 2600-01. (Dkt. #19). The Court granted Gibson 24 le a v e to file a Fourth Amended Complaint in accordance with the Court's order by August 25 9 , 2010. (Id.). 26 27 28 vs. C H IE F MEDICAL OFFICER OF CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. ROBERT D. GIBSON, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) C a s e No. 2:09-cv-00230-MSB ORDER I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

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F irs t, with regard to the Motion to Authenticate the Court's April 9, 2010 order d is m is s in g Gibson's Second Amended Complaint, the order was issued by the undersigned. A d d itio n a lly, to the extent that Gibson states that "[t]he second amended complaint . . . was p lag iar ize d from complaints filed by licensed Attorneys on file with the District Court" (Dkt. # 2 2 at 1), he is reminded that "[t]hreadbare recitals of the elements of a cause of action, s u p p o rte d by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1 9 4 9 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[A] formulaic r e c ita tio n of the elements of a cause of action will not do."). Rather, the Complaint must a lle g e facts sufficient "to raise a right to relief above the speculative level." Twombly, 550 U .S . at 555. S e c o n d , in his Motion For Extension of Time to File a Fourth Amended Complaint, G ib so n requests that the Court extend by 90 days the deadline to amend his complaint. (Dkt. # 2 1 ). Gibson states that he intends to rewrite the Complaint and file a Motion for

R e c o n s id e ra tio n of the Court's July 8, 2010 order. (Id. at 1). Gibson also states that "[d]ue to the [r]acial [l]ockdowns[,] [he] doesn't know when he will be allowed adequate access to o f f i c e supplies [that] he has purchased for the preparation of the [m]otions in this action." ( I d .) . A c c o r d in g l y , IT IS HEREBY ORDERED THAT: (1) P la in tif f 's Motion for Extension of Time to file a Fourth Amended Complaint

(D k t. #21) is granted in part and denied in part. If Plaintiff chooses to file a fourth a m e n d e d complaint, he must do so no later than October 11, 2010. Plaintiff must clearly d e sig n a te on the face of the complaint that it is the "Fourth Amended Complaint." The f o u r t h amended complaint must be retyped or rewritten in its entirety and may not in c o rp o ra te any part of the prior complaints by reference. Plaintiff is reminded that an a m e n d e d complaint entirely supersedes the prior complaints; the prior complaints are treated a s nonexistent after amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1 9 9 2 ). Any cause of action raised in a prior complaint is waived if it is not raised in the -2-

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a m e n d e d complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff is also re m in d ed that the Court is required to screen any amended complaint under 42 U.S.C. § 1 9 1 5 A . If Plaintiff chooses not to amend his complaint, he may voluntarily dismiss this ac tio n by filing a Notice of Dismissal pursuant to Federal Rule of Civil Procedure 4 1 (a )(1 )(A ) no later than October 11, 2010. Plaintiff is warned, however, that "if [he] p re v io u s ly dismissed any federal-or state-court action based on or including the same claim[s a ss e rte d in this action], [the] notice of dismissal [will] operate[] as an adjudication on the m e rits ." FED. R. CIV. P. 41(a)(1)(B). (2 ) is granted. (3) (4 ) P la in t if f ' s Motion for 90-Day Extension of Time (Dkt. #20) is denied as moot. N o further extensions of time to file an amended complaint will be P la in tif f 's Motion to Authenticate the Court's April 9, 2010 order (Dkt. #22)

g r a n te d . If Plaintiff fails to file an amended complaint or a Notice of Dismissal by October 1 1 , 2010, the Court shall, without further notice, order the Clerk of the Court to dismiss this a c tio n . The dismissal will count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g).

D A T E D this 25th day of August, 2010.

/s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation

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