Opinion
3:17-cv-00031-MMD-WGC
08-07-2017
ROY HOUSEMAN, Plaintiff, v. PAPKE et al., Defendants.
ORDER
I. DISCUSSION
Plaintiff, who was a prisoner in the custody of the Nevada Department of Corrections ("NDOC") when he initiated this case, has filed two motions to supplement his complaint. (ECF No. 3, 5). The Court will not piecemeal Plaintiff's complaint together. Plaintiff's operative complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. As such, the Court denies the motions to supplement and join claims to the complaint (ECF No. 3, 5) and grants Plaintiff leave to file a fully complete first amended complaint.
If Plaintiff chooses to file a first amended complaint he is advised that a first amended complaint supersedes (replaces) the original complaint and, thus, the first amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that "[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original"); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Plaintiff's first amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file the first amended complaint on this Court's approved prisoner civil rights form and it must be entitled "First Amended Complaint."
Additionally, the Court denies the application to proceed in forma pauperis for prisoners (ECF No. 1) as moot because Plaintiff is no longer incarcerated. The Court now directs Plaintiff to file an application to proceed in forma pauperis by a non-prisoner within thirty (30) days from the date of this order or pay the full filing fee of $400.
II. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motions to supplement and join claims to complaint (ECF No. 3, 5) are denied.
IT IS FURTHER ORDERED that, if Plaintiff chooses to file a first amended complaint, Plaintiff shall file the first amended complaint within 30 days from the date of entry of this order.
IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his complaint and motions to supplement and join claims to the complaint (ECF No. 1-1, 3, 5). If Plaintiff chooses to file a first amended complaint, he must use the approved form and he shall write the words "First Amended" above the words "Civil Rights Complaint" in the caption.
IT IS FURTHER ORDERED that, if Plaintiff does not timely file a first amended complaint, the Court will screen the original complaint (ECF No. 1-1) only and strike all other supplements (ECF No. 3, 5) from the docket.
IT IS FURTHER ORDERED that Plaintiff's application to proceed in forma pauperis for prisoners (ECF No. 1) is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk of the Court SHALL SEND Plaintiff the approved form application to proceed in forma pauperis by a non-prisoner, as well as the document entitled information and instructions for filing an in forma pauperis application.
IT IS FURTHER ORDERED that within thirty (30) days from the date of this order, Plaintiff shall either: (1) file a fully complete application to proceed in forma pauperis for non-prisoners; or (2) pay the full filing fee of $400.
IT IS FURTHER ORDERED that, if Plaintiff fails to timely comply with this order, the Court shall dismiss this case without prejudice.
DATED: This 7th day of August, 2017.
/s/_________
United States Magistrate Judge