Opinion
CV-23-01740-PHX-JAT (DMF)
10-23-2023
Michael D. Escobar, Plaintiff, v. Irene Barron Irby, et al., Defendants.
ORDER
I. Procedural History
On July 27, 2023, Plaintiff Michael D. Escobar, who is confined in a Maricopa County Jail, filed a Complaint (Doc. 1-3 at 13-16) in the Superior Court of Maricopa County, Arizona, against Irene Barron Irby, Sergeant Navarro, Officer Raymer, and Officer Bernardino. On August 22, 2023, Defendants Irby, Navarro, and Bernardino filed a Notice of Removal and removed the case to this Court. On August 28, 2023, Defendants filed a Motion for Extension of Time to File Responsive Pleading/Motion to Dismiss (Doc. 3).
The citation refers to the document and page number generated by the Court's Case Management/Electronic Case Filing system.
Defendant Raymer was not served.
II. Removal
A state court defendant may remove to federal court any civil action brought in the state court over which the federal district courts would have original jurisdiction. 28 U.S.C. § 1441(a). In his Complaint, Plaintiff alleges, among other things, that Defendants violated his Eighth and Fourteenth Amendment rights. This Court's jurisdiction extends to such claims. See 28 U.S.C. § 1331 (a federal court has original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States”). The Notice of Removal was filed within 30 days of Defendants Irby, Navarro, and Bernardino being served, and the Removing Defendants indicate that all properly served Defendants consent to the removal. It therefore appears this case was timely and properly removed.
III. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). After screening is complete, the Court will notify the parties if an answer to the Complaint or any subsequently filed amended complaint is required.
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints . . . by incarcerated persons must be signed and legibly written or typewritten on forms approved by the Court and in accordance with the instructions provided with the forms.” Plaintiff's Complaint is not on the court-approved form. The Court may, in its discretion, forgo the requirement that a plaintiff use a court-approved form. See LRCiv 3.4. The Court will require use of the court-approved form because Plaintiff's Complaint substantially differs from the court-approved form. Thus, Plaintiff's Complaint will be dismissed without prejudice and with leave to amend, in order for Plaintiff to file an amended complaint on a court-approved form. . . . .
IV. Leave to Amend
Within 30 days, Plaintiff may submit a first amended complaint on a court-approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
V. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court). . . . .
IT IS ORDERED:
(1) Plaintiffs Complaint (Doc. 1-3 at 13-16) is dismissed for failure to file on a court-approved form. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(2) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice and deny any pending unrelated motions as moot.
(3) Defendants' Motion for Extension of Time to File Responsive Pleading/Motion to Dismiss (Doc. 3) is denied as moot.
(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.