Andrews v. Aurelio et al

Filing 22

ORDER GRANTING EXTENSION OF TIME TO FILE SECOND AMENDED COMPLAINT. Signed by Judge Lucy H. Koh on 11/4/11. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 11/9/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID RAYMOND ANDREWS,

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Plaintiff,
v.
J. AURELIO, et al.,

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Defendants.

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No. C 11-2526 LHK (PR)
ORDER GRANTING
EXTENSION OF TIME TO FILE
SECOND AMENDED
COMPLAINT

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint

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pursuant to 42 U.S.C. § 1983. On September 19, 2011, the Court screened Plaintiff’s amended

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complaint, and dismissed it with leave to amend. On October 17, 2011, Plaintiff filed a notice of

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appeal. Although directed to do so, Plaintiff has not yet submitted his second amended

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complaint.

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However, out of an abundance of caution, the Court will sua sponte grant Plaintiff an

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additional twenty days to file his second amended complaint. Plaintiff is advised that the order

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he is attempting to appeal is not a final, appealable order. Thus, this Court retains jurisdiction,

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and Plaintiff’s 30-day deadline for filing a second amended complaint is not tolled on the basis

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that Plaintiff has filed a notice of appeal. See Cohen v. United States, No. 08-55978, 2010 WL

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737837 (9th Cir. March 3, 2010) (unpublished memorandum disposition) (“The district court

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properly determined that [plaintiff’s] attempt to appeal from a nonappealable order did not divest
Order Granting Extension of Time to File a Second Amended Complaint
P:\pro-se\sj.lhk\cr.11\Andrews526eotsac

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the district court of jurisdiction or toll the time-period for effectuating service, especially in light

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of the district court’s explicit warnings to [plaintiff] that it retained jurisdiction.”).

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Accordingly, Plaintiff shall file a SECOND AMENDED COMPLAINT within twenty

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days from the date this order is filed to cure the deficiencies described in this Court’s order filed

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on September 19, 2011. The second amended complaint must include the caption and civil case

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number used in this order (C 11-2526 LHK (PR)) and the words SECOND AMENDED

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COMPLAINT on the first page. Plaintiff may not incorporate material from the prior complaint

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by reference. Failure to file a second amended complaint within twenty days, and in

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accordance with this order will result in dismissal of this action.

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Plaintiff is advised that an amended complaint supersedes the original complaint. “[A]

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plaintiff waives all causes of action alleged in the original complaint which are not alleged in the

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amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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It is the Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to do

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so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

11/4/11
LUCY H. KOH
United States District Judge

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Order Granting Extension of Time to File a Second Amended Complaint
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