Humphreys v. Hatton et al

Filing 34

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 33 EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT; DENYING 32 MOTON FOR PRELIMINARY INJUNCTION.Amended Complaint due by 11/19/2018. (ndrS, COURT STAFF) (Filed on 8/31/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD R. HUMPHREYS,
Plaintiff,

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Case No. 17-cv-05628-HSG (PR)

v.
MARTINEZ, et al.,
Defendants.

ORDER GRANTING EXTENSION OF
TIME TO FILE SECOND AMENDED
COMPLAINT; DENYING MOTON FOR
PRELIMINARY INJUNCTION
Re: Dkt. Nos. 32, 33

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Plaintiff, an inmate at the Correctional Training Facility (“CTF”) proceeding pro se, filed

United States District Court
Northern District of California

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this civil rights action pursuant to 42 U.S.C. § 1983. On January 26, 2018, the Court reviewed his

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complaint and dismissed it with leave to amend on the ground that there were a wide variety of

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claims that appeared to be improperly joined, and the supporting facts were difficult to understand.

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Plaintiff then filed an amended complaint alleging that various CTF officers stole his mail and

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retaliated against him. On July 19, 2018, the Court reviewed the amended complaint and found

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that it stated First Amendment and Fourteenth Amendment claims as against CTF officers

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McGriff, J. Martinez, Serna, Jimenez, and M. Perez for interference with plaintiff’s mail.

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Plaintiff’s retaliation claim was dismissed with further to leave to amend. Now before the Court is

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plaintiff’s: (1) motion for preliminary injunction, and (2) motion for 90-day extension of time to

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file his second amended complaint.

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Plaintiff seeks a preliminary injunction directing CTF Officer Baldwin to stop stealing

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plaintiff’s mail and legal documents. Officer Baldwin is not a party to this action. Accordingly,

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to the extent plaintiff seeks to force or enjoin action by Officer Baldwin, the motion must be

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denied based on the Court’s lack of jurisdiction. See Fed. R. Civ. P. 65(d)(2).

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The motion must also be denied based on plaintiff’s failure to comply with notice

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requirements. Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a

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preliminary injunction or temporary restraining order. Prior to granting a preliminary injunction,

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notice to the adverse party is required. See Fed. R. Civ. P. 65(a)(1). Therefore, a motion for

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preliminary injunction cannot be decided until the parties to the action are served. See Zepeda v.

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INS, 753 F.2d 719, 727 (9th Cir. 1983). Because defendants have not yet been served in this

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action and plaintiff has not provided evidence showing that defendants have received notice of this

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action, the motion for a preliminary injunction is DENIED without prejudice.

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Good cause appearing, plaintiff’s motion for an extension of time to file a second amended

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complaint (“SAC”) is GRANTED. Plaintiff shall file his SAC by November 19, 2018. Plaintiff

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should name Officer Baldwin in the second amended complaint and include specific allegations

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against Officer Baldwin if he wishes to include Officer Baldwin as a defendant in this action.

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Parties may not file piecemeal complaints or amendments that contain portions of claims and

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United States District Court
Northern District of California

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defendants.
Plaintiff is reminded that a second amended complaint supersedes the original complaint

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and first amended complaint. “[A] plaintiff waives all causes of action alleged in the original

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complaint which are not alleged in the amended complaint.” London v. Coopers & Lybrand, 644

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F.2d 811, 814 (9th Cir. 1981). Plaintiff may not incorporate material from the prior complaints by

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reference. Defendants not named in an amended complaint are no longer defendants. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, plaintiff must repeat his allegations

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against officers McGriff, J. Martinez, Serna, Jimenez, and M. Perez in the SAC if he files an SAC.

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Failure to file an SAC by the deadline will result in the dismissal of all claims except

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the First and Fourteenth Amendment claims against officers McGriff, J. Martinez, Serna,

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Jimenez, and M. Perez.

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This order terminates Dkt. Nos. 32 and 33.

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IT IS SO ORDERED.

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Dated: 8/31/18

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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