Burton v. McVay
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court considered a pro se prisoner's second 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 November 28, 2024, and warned that any claims or defendants not re-pled would be considered waived.
| 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 November 28, 2024.” | agree with court The decision to grant a second extension of time to amend is within the court's discretion, particularly for a pro se litigant. The order does not recite specific facts justifying the second extension (e.g., illness, legal complexity), but granting such extensions is common practice to ensure meaningful access to the courts for pro se prisoners. The result is defensible. |
The order itself: sound — The order is procedurally sound. It correctly identifies the procedural posture (second motion for extension) and applies the standard warning regarding the superseding nature of amended pleadings under Ninth Circuit law. The citations to *Hal Roach* and *Lacey* are appropriate for the warning given. The order is brief but sufficient for a routine scheduling matter.
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 MCVAY, Warden, et al., 15 [Doc. No. 8] 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. On September 10, 2024, the Court granted Plaintiff’s 23 motion for a 30-day extension of time to amend until October 28, 2024. Doc. No. 7. 24 Plaintiff has now filed a second Motion seeking another 30-day extension of time to 25 amend. Doc. No. 8. 26 The Court GRANTS Plaintiff’s Motion and EXTENDS the time to amend to 27 November 28, 2024. Plaintiff is reminded that his amended complaint must be complete 28 by itself without reference to any previous version of his complaint. Any Defendants not | |}re-named and any claims not re-alleged in the amended complaint will be considered 2 || waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 3 || 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 4 || original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that 5 || claims dismissed with leave to amend which are not re-alleged in an amended pleading 6 || may be “considered waived if not repled.’’) 7 IT IS SO ORDERED. 8 || Dated: October 29, 2024 9 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2