Opinion
3:12-cv-00123-RCJ-WGC
01-15-2013
ANTHONY LEWIS, #96337 Plaintiff, v. ANGELA GREGERSON, et al., Defendants.
ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. A decision on the application to proceed in forma pauperis remains deferred. On May 2, 2012, the court dismissed plaintiff's amended complaint without prejudice and with leave to amend and directed him to file his amended complaint, if any, within thirty (30) days (ECF #4). On May 11,2012, plaintiff filed a "motion to drop the amended complaint and to proceed with the original complaint" (ECF #5). This motion is denied. The court had already screened the operative complaint (ECF #3) and dismissed it with leave to amend (ECF #4).
Next, plaintiff filed an untimely motion to reconsider the screening order (ECF #6) on July 30, 2012. As the court dismissed plaintiff's complaint without prejudice and with leave to file an amended complaint, the court's order does not constitute a final judgment or order from which plaintiff could seek relief. FRCP 59(e); FRCP 60(b); School Dist. No. IJ Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994). Accordingly, plaintiff's motion is denied.
Finally, plaintiff filed a motion to dismiss amended complaint without prejudice (ECF #7) on August 1, 2012. The court construes this motion as seeking to proceed with the original complaint and denies this motion on the same basis that it denied plaintiff's motion to drop the amended complaint.
Accordingly, plaintiff now shall file his second amended complaint, if any, within thirty (30) days of the date of this order. Plaintiff is expressly cautioned that if he does not timely file a second amended complaint in compliance with this order, this case may be immediately dismissed.
IT IS THEREFORE ORDERED that the following motions filed by plaintiff: motion to drop the amended complaint and to proceed with the original complaint (ECF #5); motion to reconsider the screening order (ECF #6); and motion to dismiss amended complaint without prejudice (ECF #7) are all DENIED.
IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that this order is entered to file his second amended complaint, if he believes he can correct the noted deficiencies. The second amended complaint must be a complete document in and of itself, and will supersede the original complaint in its entirety. Any allegations, parties, or requests for relief from prior papers that are not carried forward in the second amended complaint will no longer be before the court.
IT IS FURTHER ORDERED that plaintiff shall clearly title the amended complaint as such by placing the words "SECOND AMENDED" immediately above "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983" on page 1 in the caption, and plaintiff shall place the case number, 3:12-CV-00123-RCJ-WGC, above the words "SECOND AMENDED"in the space for "Case No."
IT IS FURTHER ORDERED that plaintiff is expressly cautioned that if he does not timely file a second amended complaint in compliance with this order, this case may be immediately dismissed.
IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank section 1983 civil rights complaint form with instructions along with one copy of the original complaint.
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UNITED STATES DISTRICT JUDGE