Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 48

ORDER Denying Motion Entering Objections [Doc. No. 46 ]. Signed by Judge Cathy Ann Bencivengo on 7/28/2020.(All non-registered users served via U.S. Mail Service)(anh)

Case 3:18-cv-01122-CAB-AGS Document 48 Filed 07/28/20 PageID.4092 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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John Henry YABLONSKY

Case No.: 18cv1122-CAB-AGS
Plaintiff,

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v.

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ORDER DENYING MOTION
ENTERING OBJECTIONS [Doc. No.
46]

CALIFORNIA DEPARTMENT OF
CORRECTION AND
REHABILITATION,

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Defendants.

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On October 7, 2019, Defendants D. Powell, G. Martinez, J. Robles, D. McGuire,

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R. Blahnik, and C. Tiscarnia (“Defendants”) filed a motion to dismiss Plaintiff’s First

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Amended Complaint (“FAC”). [Doc. No. 39.] On November 5, 2019, Plaintiff John

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Henry Yablonsky (“Plaintiff”) filed an opposition. [Doc. No. 35.] On December 13,

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2019, Defendants filed a reply. [Doc. No. 36.] On December 31, 2019, Plaintiff filed a

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sur-reply. [Doc. No. 38.] On June 2, 2020, Magistrate Judge Andrew G. Schopler

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prepared a Report and Recommendation (“Report”) recommending that the motion to

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dismiss be granted in part and denied in part. [Doc. No. 39.] On July 14, 2020, this Court

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issued an order adopting the Report, granting in part and denying in part the motion to

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18cv1122-CAB-AGS

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dismiss the FAC, and (should Plaintiff wish to amend the claims that were dismissed)1

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giving Plaintiff until August 7, 2020, to file a Second Amended Complaint (“SAC”).

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[Doc. No. 43.] The order also stated that if Plaintiff did not file an SAC (and instead

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chose to proceed on the claim in the FAC that was not dismissed)2, then Defendants are

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to file an answer to the remaining claim in the FAC by August 21, 2020. [Doc. No. 43 at

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3.]

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On July 24, 2020, Plaintiff filed a Motion Entering Objections pursuant to §636

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Regarding Courts July 14, 2020 Order. [Doc. No. 46.] In the Motion Plaintiff states he is

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confused by the July 14 Order because he does not understand why Defendants would be

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filing an answer to the FAC, when he has been granted leave to file an SAC. [Doc. No.

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46.] Plaintiff also states that Defendants have already filed an answer to the FAC. [Doc.

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No. 46 at 1.] However, the docket does not reflect that Defendants have ever filed an

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answer to the FAC. Rather, Defendants filed a motion to dismiss the claims the FAC.

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The court then granted the motion to dismiss as to most of the claims, but denied the

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motion to dismiss as to the Free Speech claim. Therefore, if Plaintiff does not file an

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SAC by August 7, 2020, the case will proceed as to the remaining claim in the FAC (the

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Free Speech Claim), and Defendants will then be required to file an answer to that

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remaining claim in the FAC.

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For these reasons, the Court did not err and the motion entering objections is
DENIED. Plaintiff is reminded that he has until August 7, 2020 to file an SAC.3 If

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The claims that were dismissed with leave to amend were: 1) Access-to-courts; 2) Retaliation (only as
to mail-reading allegations); 3) ADA disability discrimination; and 4) Declaratory relief.
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The claim that was not dismissed was the Free Speech Claim
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Plaintiff is again reminded that the Second Amended Complaint must be complete in itself without
reference to his original pleading. Defendants not named and any claims not re-alleged in the Second
Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes
the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered
waived if not repled.”)

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Plaintiff does not file an SAC by August 7, 2020, then the case will proceed as to the

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remaining claim in the FAC, which Defendants are required to answer by August 21,

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2020.

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IT IS SO ORDERED.
Dated: July 28, 2020

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