Opinion
2:23-cv-01121-APG-DJA
11-07-2023
TONEY A. WHITE, Plaintiff v. RONALD OLIVER, et al. Defendants
ORDER DIRECTING WHITE TO FILE A SECOND AMENDED COMPLAINT
ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE
Pro se plaintiffs Charles McNees, David Bresselsmith, and Toney A. White jointly initiated this civil-rights action under 42 U.S.C. § 1983 to redress constitutional violations that they claim they suffered while incarcerated. ECF No. 1-1. However, after McNees and Bresselsmith failed to file fully complete applications to proceed in forma pauperis, I dismissed them without prejudice from this case. I will permit White to continue this action alone because he filed a fully complete application to proceed in forma pauperis.See ECF No. 7. However, to proceed with this case, White needs to submit a second amended complaint that contains allegations about events that only happened to him. The second amended complaint will not mention McNees or Bresselsmith. Additionally, White does not need to include any exhibits with his second amended complaint at this stage of the litigation. See General Order 2021-05 (Oct. 31, 2021).
Because White is the only plaintiff who is allowed to proceed in this case, White will be solely responsible for the filing fee in this action. See 28 U.S.C. § 1915.
White is cautioned that he must comply with the District of Nevada's Local Rule IA 10-1(a)(1), (3) and will write no more than 28 lines per page, will double-space his lines, and will write in text size 12 or larger. I recognize that White is handwriting his documents, but he must write larger than he currently writes and include no more than 28 lines per page.
I therefore order that White file a second amended complaint on or before December 8, 2023, with allegations that only apply to himself. If White fails to timely comply with this order, I will dismiss this action without prejudice.
I defer decisions on White's application to proceed in forma pauperis (ECF No. 7), the motion for temporary restraining order (ECF No. 10), and the motion for preliminary injunction (ECF No. 11) until after White submits a second amended complaint.
The Clerk of the Court will send to White the approved form for filing a § 1983 complaint, instructions for the same, a copy of the amended complaint (ECF No. 3), and a copy of the District of Nevada's General Order 2021-05. If White chooses to file a second amended complaint, he should use the approved form and mark “Second Amended Complaint” in the caption.
GENERAL ORDER NO. 2021-05
PRO SE INMATE NON-HABEAS CIVIL RIGHTS FILINGS
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
In order to assist pro se inmates litigating non-habeas civil rights cases and to increase the efficiency and effectiveness of the limited public resources devoted to the management and adjudication of these cases, the United States District Court for the District of Nevada (the “Court”) finds it appropriate to implement these filing procedures.
Below are general procedures that apply to all non-habeas civil filings (paper and electronic) of pro se inmates and their opponents (whether pro se or represented) in federal, state, or county custody.
1. Filing Fee for a Civil Action
a. The filing fee for a non-habeas civil rights complaint is $402. This includes the $350 filing fee and the $52 administrative fee that is due when the plaintiff submits his or her complaint in this Court.
b. If the plaintiff is unable to pay all of the fee when he or she submits his or her complaint, the plaintiff must file an application to proceed in forma pauperis for inmates with the required attachments. Either the full filing fee or a complete application to proceed in forma pauperis must accompany each complaint; otherwise, the complaint will not be filed or addressed by the Court.
c. If the plaintiff files an application to proceed in forma pauperis, he or she must submit a complete in forma pauperis application for an inmate, a copy of his or her inmate trust account statement for the past six months from the prison or jail, and a properly executed financial certificate attesting to the inmate's financial resources signed by an authorized officer at the prison or jail.
d. If in forma pauperis status is granted, the plaintiff may or may not be required to pay an initial installment of the filing fee. However, the prison or jail where the plaintiff is housed at will be ordered to forward payments from the plaintiff's account to the Clerk of the Court in the amount of 20% of the preceding month's deposits (in months that the account exceeds $10.00) until the full $350 filing fee has been paid for the action. In the event that the action is dismissed, the full filing fee of $350 (but not the administrative fee of $52) must still be paid pursuant to 28 U.S.C. § 1915(b)(2).
2. The Initial Complaint and Amended Complaints
a. The initial complaint or any amended complaint may not be more than 30 pages long.
b. It is not necessary to attach exhibits or affidavits to the complaint or any amended complaint. Rather, the complaint or any amended complaint must sufficiently state the facts and claims without reference to exhibits or affidavits. Failure to state the facts and claims within the body of the complaint or amended complaint, without reference to any attached exhibits or affidavits, may result in dismissal.
c. If a plaintiff believes he or she needs to file a complaint or amended complaint that is more than 30 pages long, he or she must file a motion seeking permission to exceed the page limit that explains why 30 pages is insufficient to state the plaintiff's claims. A motion to exceed 30 pages must not be longer than 3 pages long. The Court looks with disfavor on motions to exceed page limits, so permission to do so will not be routinely granted. LR 7-3(c).
d. Ordinarily, multiple plaintiffs cannot bring claims in the same complaint or amended complaint. In order for more than one plaintiff to bring a claim in the same complaint, all plaintiffs must meet the requirements found in Federal Rule of Civil Procedure 20(a)(1). This means that at least one claim of all plaintiffs “aris[es] out of the same transaction, occurrence, or series of transactions or occurrences” and raises “a question of law or fact” common to all plaintiffs.
e. A plaintiff may bring claims against multiple defendants in a single complaint or amended complaint, but to do so the plaintiff must meet the requirements in Federal Rule of Civil Procedure 20(a)(2). This means that at least one claim against all defendants must “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences” and raise “a question of law or fact common to all defendants.” Claims that do not meet these standards must be filed in separate lawsuits.
See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (holding in PLRA context: “A buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions—should be rejected if filed by a prisoner.”).
f. When the plaintiff files a complaint or amended complaint, the claims for relief must meet the requirements in Federal Rule of Civil Procedure 8(a)(2). This requires the complaint or amended complaint contain a short and plain statement of the facts that support the claim, which if ultimately proven, would result in the plaintiff being entitled to some form of relief. The facts must be stated simply, clearly, and concisely. The complaint is subject to screening pursuant to 28 U.S.C. § 1915A(a) by the Court to determine whether any claim(s) may proceed.
g. Any post-screening motion to amend a complaint must comply with the requirements of Federal Rule of Civil Procedure 15(a) and Local Rule 15-1(a). Screening of any amended complaint may take many months due to the number of inmate civil rights cases currently awaiting screening.
h. Post-answer, the failure of a served defendant to respond to a motion to amend will be reviewed in accordance with Local Rule 7-2, which states that the failure of an opposing party to file an opposition to a motion constitutes consent to the granting of the motion.
3. Motions
a. Except as otherwise stated in this General Order, pursuant to Local Rule 7 3, motions for summary judgment and responses to motions for summary judgment are limited to 30 pages. Replies in support of motions for summary judgment are limited to 20 pages. All other motions and responses to motions are limited to 24 pages. All other replies are limited to 12 pages.
b. When a motion is filed, the opposing party may file one response, usually an opposition. After a response to a motion is filed, the party who filed the motion may file a reply in support of the motion. No other documents, such as supplements or responses to the reply, may be filed unless the Court grants permission to do so.
c. Parties need not include a “standard of law” section in a response to a motion if it repeats the standard of law stated in the underlying motion. Instead, the party responding to a motion may state their agreement with that standard.
d. Parties must not file “notices” or “letters” with the Court unless it is to notify the Court of procedural changes such as changes of address or notices of a change in counsel. Parties must not use notices or letters to ask the Court to rule on a motion. A request for the Court to rule on something must be filed as a motion. Improperly filed “notices” or “letters” will be stricken from the docket.
e. Declarations, affidavits and exhibits are to be filed only as attachments in support of a motion, a response to a motion, or a reply in support of a motion. Declarations, affidavits, and exhibits that are not filed in support a motion, a response to a motion, or a reply to a motion may not be filed.
f. No party may file a motion if he or she has another motion on the same subject matter already pending before the Court. Motions submitted in violation of this General Order may be struck or may be summarily denied.
g. Pursuant to Local Rule 7-2, the failure of an opposing party to file an opposition to any motion, except a motion under Federal Rule of Civil Procedure 56, constitutes a consent to the granting of the motion.
4. Emergency Motions
a. An emergency motion must comply with this General Order and Local Rule 7-4. This means the party filing the motion must attach a declaration that explains why there is an emergency and what efforts were taken to meet and confer with the opposing party in good faith prior to filing the motion.
b. An emergency motion and response may be no more than 24 pages long. LR 7-3(b). Reply is limited to 12 pages. Attached exhibits will not count towards the page limit.
c. If a party needs to file an emergency motion that is longer than 24 pages, he or she must submit a motion seeking permission to exceed the page limit and demonstrate the grounds for the need to exceed the page limit which must not be longer than 3 pages. The Court looks with disfavor on motions to exceed page limits, so permission to do so will not be routinely granted. LR 7-3(c).
5. Discovery
a. A scheduling order and discovery plan will be issued in each case. These orders are designed to make prisoner litigation more disclosure-oriented and less discovery-oriented, based on the Court's experience that: (1) defendants in prisoner lawsuits tend to hold a disproportionate share of the information and items relevant to a lawsuit; and (2) prisoners often propound discovery that is disproportionate to the needs of the case.