Sims v. C.D.C.R. et al

Filing 26

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELVIN SIMS,

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No. 2:15-CV-0713-CMK-P

Plaintiff,
vs.

ORDER

SMITH, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for an extension of time

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(Doc. 22) to file a second amended complaint; and (2) plaintiff’s motion to proceed with the

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original complaint (Doc. 23).

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On January 28, 2016, the court denied plaintiff’s motions for leave to amend as

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unnecessary. Plaintiff was advised that he could amend as-of-right but that, if he did not do so

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within 30 days, the action would proceed on the original complaint. Plaintiff then filed a first

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amended complaint. The court dismissed the first amended complaint with leave to amend and

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directed plaintiff to file a second amended complaint. As of June 9, 2017, the time to file a

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second amended complaint expired and the court directed plaintiff to show cause why the action
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should not be dismissed. Plaintiff responded by seeking additional time to file a second amended

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complaint. The court granted two requests for additional time.

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In his motion for a further extension of time, plaintiff states that additional time is

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needed to file a second amended complaint due to a lock-down related to a “statewide search.”

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In his motion to proceed on the original complaint, plaintiff anticipates that, due to the lock-

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down, he will be unable to file a second amended complaint. He asks the court to proceed on the

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original complaint instead.

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Because the original complaint was superceded by the first amended complaint,

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the court cannot refer to the original complaint as the operative pleading in this action. To the

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extent the lock-down prevents plaintiff from filing a second amended complaint within the time

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set by the court, plaintiff is able to seek additional extensions of time. In the meantime, and good

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cause appearing therefor, the court will grant plaintiff’s motion for an extension of time to file a

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second amended complaint. Plaintiff is again cautioned that failure to comply may result in

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dismissal of the action. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to proceed on the original complaint (Doc. 23) is

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Plaintiff’s motion for an extension of time (Doc. 22) is granted; and

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3.

Plaintiff shall file a second amended complaint within 60 days of the date

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denied;

of this order.

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DATED: October 11, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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