Opinion
3:16-cv-00337-RCJ-VPC
04-13-2017
ANNETTE MCKEE, Plaintiff, v. DISTRICT ATTORNEY et al., Defendants.
ORDER
This case arises from alleged civil rights violations under 42 U.S.C. § 1983. On September 2, 2016, Magistrate Judge Cooke issued a screening order dismissing Plaintiff Annette McKee's complaint with leave to amend. The screening order was clear concerning both the deficiencies in the complaint and the permitted timeframe for amendment, providing that if Plaintiff failed to file an amended complaint within thirty days of the screening order, the magistrate judge would recommend dismissal with prejudice. (Screening Order 5, ECF No. 3.)
Without having amended her complaint, Plaintiff filed two motions in this case on January 3, 2017, for change of venue and default judgment. (ECF Nos. 6, 7.) With no viable complaint in this action, these motions are premature; Plaintiff's case is currently dismissed pending the filing of a first amended complaint. Therefore, the motions must be denied.
Under different circumstances, the Court may additionally be inclined to dismiss this case with prejudice due to Plaintiff's failure to file an amended complaint within the time limit provided by the magistrate judge. See McNamara v. Edwards, 8 F.3d 28 (9th Cir. 1993) (affirming dismissal with prejudice in similar circumstances). However, it appears Plaintiff never received a copy of the screening order because it was sent to a bad address—1050 N. Hills Blvd., Reno, NV 89506—which may explain Plaintiff's failure to amend her complaint. Luckily, the Court has found what looks like Plaintiff's complete address among her motion filings: 1050 N. Hills Blvd. #60687, Reno, NV 89506. Therefore, in this situation the Court sees fit to give Plaintiff another opportunity to file an amended complaint.
CONCLUSION
IT IS HEREBY ORDERED that the motion for change of venue (ECF No. 6) and motion for default judgment (ECF No.7) are DENIED without prejudice. Plaintiff may refile these motions at an appropriate time, in no event sooner than her First Amended Complaint is filed, screened, and permitted, in whole or in part, to proceed.
IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this order to Plaintiff at the updated address of 1050 N. Hills Blvd. #60687, Reno, NV 89506, along with copies of the screening order (ECF No. 3) and Plaintiff's complaint (ECF No. 4).
IT IS FURTHER ORDERED that Plaintiff shall have thirty days from the date of this order to file an amended complaint in accordance with the magistrate judge's instructions in the screening order (ECF No. 3). Plaintiff is advised that if she does not file an amended complaint within the specified time period, this case will be dismissed WITH PREJUDICE.
IT IS SO ORDERED.
DATED: This 13th day of April, 2017.
/s/_________
ROBERT C. JONES
United States District Judge