Opinion
CV-24-00509-PHX-JAT (ASB)
04-10-2024
Derek Bluford, Plaintiff, v. United States of America, Defendant.
ORDER
James A. Teliborg Senior United States District Judge
Plaintiff Derek Bluford, who is confined in the United States Penitentiary-Lompoc, has filed a pro se Verified Complaint pursuant the Federal Tort Claims Act and the Rehabilitation Act (Doc. 1) and paid the filing and administrative fees. The Court will dismiss the Complaint with leave to amend.
I. 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). 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).
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 here because Plaintiff's Complaint does not substantially comply with the requirements of the court-approved form. Plaintiff's Complaint will be dismissed without prejudice and with leave to amend.
II. Leave to Amend
Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. 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. RichardFeiner & 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).
The Court notes that Plaintiff's Complaint comprises 32 pages and includes legal arguments. The court-approved form Complaint is six pages long and both the form Complaint and accompanying instructions permit an inmate to attach “no more than fifteen additional pages” of standard letter-sized paper. (Instructions at 1 ¶ 2). A document that complies with Local Rule of Civil Procedure 3.4, therefore, would be no longer than 21 pages. In addition, the court-approved form provides that a plaintiff should state as briefly as possible the facts supporting each claim by describing exactly what each Defendant did or did not do that violated the plaintiff's rights. The form further provides, “State the facts clearly in your own words without citing legal authority or arguments.” Therefore, if Plaintiff files an amended complaint, he should not cite legal authority or make legal arguments to support his claims.
III. 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) The Complaint (Doc. 1) is dismissed for failure to comply with Rule 3.4 of the Local Rules of Civil Procedure. 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.
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(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.