Sims v. C.D.C.R. et al
ORDER signed by Magistrate Judge Craig M. Kellison on 10/11/2017 DENYING plaintiff's 23 motion to proceed on the original complaint and GRANTEIDN plaintiff's 22 motion for an extension of time. Plaintiff shall file a second amended complaint within 60 days. (Yin, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SMITH, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for an extension of time
(Doc. 22) to file a second amended complaint; and (2) plaintiff’s motion to proceed with the
original complaint (Doc. 23).
On January 28, 2016, the court denied plaintiff’s motions for leave to amend as
unnecessary. Plaintiff was advised that he could amend as-of-right but that, if he did not do so
within 30 days, the action would proceed on the original complaint. Plaintiff then filed a first
amended complaint. The court dismissed the first amended complaint with leave to amend and
directed plaintiff to file a second amended complaint. As of June 9, 2017, the time to file a
second amended complaint expired and the court directed plaintiff to show cause why the action
should not be dismissed. Plaintiff responded by seeking additional time to file a second amended
complaint. The court granted two requests for additional time.
In his motion for a further extension of time, plaintiff states that additional time is
needed to file a second amended complaint due to a lock-down related to a “statewide search.”
In his motion to proceed on the original complaint, plaintiff anticipates that, due to the lock-
down, he will be unable to file a second amended complaint. He asks the court to proceed on the
original complaint instead.
Because the original complaint was superceded by the first amended complaint,
the court cannot refer to the original complaint as the operative pleading in this action. To the
extent the lock-down prevents plaintiff from filing a second amended complaint within the time
set by the court, plaintiff is able to seek additional extensions of time. In the meantime, and good
cause appearing therefor, the court will grant plaintiff’s motion for an extension of time to file a
second amended complaint. Plaintiff is again cautioned that failure to comply may result in
dismissal of the action. See Local Rule 110.
Accordingly, IT IS HEREBY ORDERED that:
Plaintiff’s motion to proceed on the original complaint (Doc. 23) is
Plaintiff’s motion for an extension of time (Doc. 22) is granted; and
Plaintiff shall file a second amended complaint within 60 days of the date
of this order.
DATED: October 11, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?