Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 52

ORDER Regarding Notice of Objection [Doc. No. 51 ]. Signed by Judge Cathy Ann Bencivengo on 8/14/2020.(All non-registered users served via U.S. Mail Service)(anh)

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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 REGARDING NOTICE OF
OBJECTION [Doc. No. 51]

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 June 2, 2020, Magistrate Judge

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Andrew G. Schopler prepared a Report and Recommendation (“Report”) recommending

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that the motion to dismiss be granted in part and denied in part. [Doc. No. 39.] On July

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14, 2020, this Court issued an order adopting the Report, granting in part and denying in

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part the motion to dismiss the FAC, and giving Plaintiff until August 7, 2020, to file a

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Second Amended Complaint (“SAC”). [Doc. No. 43.] The order also stated that if

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Plaintiff did not file an SAC, then Defendants were to answer the FAC (as amended by

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the Court’s order ) by August 21, 2020. [Doc. No. 43 at 3.]

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18cv1122-CAB-AGS

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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.] On July 28, 2020, the Court

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issued an order denying the motion entering objections, and indicated that the only claim

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in the FAC that had not been dismissed was the Free Speech Claim. [Doc. No. 48 at 2.]

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On August 11, 2020, Plaintiff filed an objection to the July 28 order, arguing that the

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Retaliation claim in the FAC – other than the reading legal mail claim – also was not

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dismissed. [Doc. No. 51.] Plaintiff is correct. The Retaliation claim in the FAC – except

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for the reading legal mail claim – was not dismissed. [See Doc. No. 39 at 12, 16; Doc.

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No. 43 at 2-3.]

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Given the Court’s error in the July 28 order, Plaintiff will be given ONE FINAL

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OPPORTUNITY to file a SAC. Plaintiff shall have until September 4, 2020 to file a

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SAC. Plaintiff is again reminded that the SAC must be complete in itself without

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reference to his original pleading. Defendants not named and any claims not re-alleged in

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the Second Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1;

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Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

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1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which

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are not re-alleged in an amended pleading may be “considered waived if not repled.”)

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If Plaintiff does not file a SAC by September 4, 2020, then the case will proceed as

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to the remaining claims in the FAC (the Free Speech claim and the Retaliation claim--

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except for the reading legal mail claim), which Defendants are required to answer by

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September 28, 2020.

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IT IS SO ORDERED.
Dated: August 14, 2020

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18cv1122-CAB-AGS