Opinion
Civil Action No. 05-cv-01512-OES.
November 7, 2005
ORDER DIRECTING PLAINTIFF TO FILE A THIRD AMENDED COMPLAINT
On August 4, 2005, Plaintiff submitted to the Court a "Declaration in Support of Plaintiff's Motion for a Preliminary Injunction and Protective Order," a "Memorandum of Law in Support of Motion for a Preliminary Injunction/Protective Order," and a "Proof of Administrative Remedies Exhausted to Satisfy the `PLRA' Exhaustion Requirements for Permanent Preliminary or Prohibitory Injunctions/Protective Order." On August 9, Plaintiff was directed to file a Prisoner Complaint and to either pay the $250.00 filing fee or submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
On September 12, Plaintiff filed a Prisoner Complaint and a Prisoner's Motion and Affidavit. The Court then directed Plaintiff to pay an initial partial filing fee of $4.00 or show cause why he has no assets or no means to pay the designated initial partial filing fee. Subsequently, on September 20, 2005, Plaintiff filed an Amended Complaint and a Motion for Leave to filed an Amended Complaint. Then on October 17, Plaintiff filed a Declaration showing that he was not able to pay the $4.00 initial partial fee. The Court granted Plaintiff leave to proceed without payment of the initial partial fee on October 20.
Plaintiff now, on October 24, filed another Amended Complaint, a Motion for Preliminary Injunction, a Memorandum of Law in Support of Plaintiff's Motion for Preliminary Injunction, and a Motion for Certification of the Class Pursuant to Rule 23(b)(2).
The Court has reviewed each of Plaintiff's Prisoner Complaints. In the September 12 Complaint, Plaintiff raises three claims, including allegations of unconstitutional censorship of Islamic publications, unconstitutional publisher-only rule disallowing certain religious publications, and discrimination against Muslims right to assemble. In the September 20 Complaint, Plaintiff raises the same claims that he asserts in the September 12 Complaint. In the October 24 Complaint, Plaintiff, however, raises three new claims, including allegations of unconstitutional banning of internet mail information, inadequate outside-group recreation, and unconstitutional indefinite suspension of outside-group recreation.
In the October 24 Complaint, Plaintiff indicates that he intends to incorporate the newly raised claims together with the claims that he raised previously. (Compl. at 3.) Plaintiff also references to a total of five claims on page seven of the October 24 Complaint form.
Plaintiff is instructed, as he was instructed previously in Case No. 05-cv-01513-WYD, that an amended complaint supersedes the original complaint. See Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985); Cameron v. Fogarty, 705 F.2d 676 (2d Cir. 1983); London v. Coopers Lybrand, 644 F.2d 811 (9th Cir. 1981). The Amended Complaint must stand on its own and not refer to or incorporate by reference the original complaint. Each claim must be supported with specific factual allegations that demonstrate how the particular Defendant or Defendants violated Plaintiff's rights. Therefore, the Prisoner Complaint form submitted on October 24, as the last filed Complaint form supersedes the prior two Complaint forms that Plaintiff submitted. The Court will not incorporate by reference the claims that Plaintiff filed earlier in the action. If Plaintiff intends to assert all the claims he has raised in the October 24 Complaint form and in the two previous Complaint forms filed September 12 and 20, he must include all claims in the same Prisoner Complaint form.
Plaintiff will be directed to file a Third Amended Complaint. Plaintiff is instructed that the Third Amended Complaint must contain all alleged claims, a request for relief, and a listing of all of the named Defendants, in other words, all information requested on the Court-approved Prisoner Complaint form. Accordingly, it is
ORDERED that Plaintiff file, within thirty days from the date of this Order, an original and a copy of a Third Amended Complaint that complies with this Order. It is
FURTHER ORDERED that the Third Amended Complaint shall be titled, "Third Amended Prisoner Complaint," and shall be filed with the Clerk of the Court for the United States District Court for the District of Colorado at the Alfred A. Arraj U.S. Courthouse, 901 Nineteenth Street, Room A-105, Denver, Colorado 80294-3589. It is
FURTHER ORDERED that the Clerk of the Court mail to Plaintiff a copy of this Order and two copies of the Prisoner Complaint form. It is
FURTHER ORDERED that Plaintiff submit sufficient copies of the Third Amended Complaint to serve each named Defendant. It is
FURTHER ORDERED that, if Plaintiff fails to file, within thirty days from the date of this Order, an original and sufficient copies of a Third Amended Complaint that complies, to the satisfaction of the Court, with this Order the action will be dismissed without further notice. It is
FURTHER ORDERED that Plaintiff's Motion for Leave to File an Amended Complaint," filed September 20, 2005, is denied as moot.