Burton v. McVay
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court considered a pro se prisoner's motion for a 30-day extension of time to file an amended complaint after a prior dismissal with leave to amend. The court granted the motion, extending the deadline to October 28, 2024, and warned that the amended complaint must be self-contained.
| What the court decided | The model |
|---|---|
Motion for Extension of Time to Amend Granted“The Court GRANTS Plaintiff’s Motion and EXTENDS the time to amend to October 28, 2024.” | agree with court The order is a procedural scheduling decision. Granting a short extension to a pro se litigant to comply with a court-ordered deadline is a standard exercise of discretion that is rarely reversed on appeal unless there is a clear abuse. The court provided a specific new date and clear instructions on the requirements for the amended pleading. |
The order itself: sound — The order correctly applies the local rule and Ninth Circuit precedent regarding the superseding nature of amended pleadings. It provides clear notice to the plaintiff of the consequences of failing to re-plead claims. The reasoning is sufficient for a procedural order granting a time extension.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEREK BURTON, Case No.: 24-cv-1302-MMA (JLB) CDCR #AI-5407, 12 ORDER GRANTING MOTION FOR Plaintiff, 13 EXTENSION OF TIME TO AMEND vs. 14 [Doc. No. 6] McVAY, Warden, et al., 15 Defendants. 16 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil 20 rights action pursuant to 42 U.S.C. § 1983. On August 11, 2024, the Court dismissed the 21 complaint for failure to state a claim and granted Plaintiff leave to amend on or before 22 September 27, 2024. (Doc. No. 5.) Plaintiff has now filed a Motion seeking a 30-day 23 extension of time to amend. (Doc. No. 6.) 24 The Court GRANTS Plaintiff’s Motion and EXTENDS the time to amend to 25 October 28, 2024. Plaintiff is reminded that his amended complaint must be complete by 26 itself without reference to any previous version of his complaint. Any Defendants not re- 27 named and any claims not re-alleged in the amended complaint will be considered 28 waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 1 || Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 2 || original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that 3 || claims dismissed with leave to amend which are not re-alleged in an amended pleading 4 be “considered waived if not repled.’’) 5 IT IS SO ORDERED. 6 || Dated: September 10, 2024 tal Uk 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 a