Maloney v. Ryan et al

Filing 13

ORDER that the 9 Order filed June 20, 2013, requiring expedited briefing as to plaintiff's TRO motion is VACATED; the 12 Emergency Motion for Extended Time is DENIED as moot; Plaintiff's 8 Motion for a Temporary Restraining Order and/or Preliminary Injunction is DENIED as moot; and Plaintiff is GRANTED leave to file a second amended complaint, which shall be filed no later than twenty (20) days from the date of entry of this Order. Signed by Senior Judge Robert C Broomfield on 6/28/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Erik Scott Maloney,

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Plaintiff,
vs.
Charles L. Ryan, et al.

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Defendants.

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No. CV 13-00314-PHX-RCB(BSB)
O R D E R

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Background

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Plaintiff pro se Erik Scott Maloney is confined in the

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Arizona State Prison Complex-Florence in Florence, Arizona.

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On February 12, 2013, he

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complaint pursuant to 42 U.S.C. § 1983, naming five

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defendants.

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violations, as well as a violation of the Religious Land Use

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and Institutionalized Persons Act (“RLUIPA”).

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those alleged violations stem from a claimed Arizona

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Department of Corrections (“ADOC”) policy or regulation which

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plaintiff claims does not accommodate his meal and prayer

filed a three count civil rights

Plaintiff is alleging various constitutional

Basically,

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requirements during the month of Ramadan.

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order, the court ordered that only three of the five named

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defendants were required to file an answer.

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5) at 7, ¶ (4).

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Director; Mike Linderman, ADOC Administrator of Pastoral

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Activities; and Wayne Mason, East Unit Chaplain at Florence

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Complex.

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date, there is nothing in the record showing that any of

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those three defendants have been served with the complaint.

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On June 13, 2013, the plaintiff filed a motion for a

In its screening

See Ord. (Doc.

Those defendants are Charles L. Ryan, ADOC

See Co. (Doc. 1) at 3, ¶¶ 1-2; and at 2, ¶ 5.

To

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temporary restraining order “and/or” a preliminary

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injunction.1

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a TRO “requiring the defendants to accommodate meal

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requirements of [M]uslim practitioners in accordance to [sic]

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the tenets of their religion.”

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added). Because Ramadan commences on July 9, 2013, this year,

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Mot. (Doc. 8) at 1:25, the court ordered the expedited filing

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of a response and reply, if any.

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the defendants’ responses were due on June 26, 2013, due to

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the State’s “internal administrative process[,]” counsel for

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defendants Linderman and Ryan, Neil Singh, Assistant Attorney

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General, did not see this court’s order until June 27, 2013.

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Mot. (Doc. 12) at 1:21-25.

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“Emergency Motion for Extended Time Re[:] Plaintiff’s Motion

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for Temporary Restraining Order” (Doc. 12).

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Mot. (Doc. 8) at 1.

The plaintiff broadly seeks

Id. at 6:10-12 (footnote

See Ord. (Doc. 9). Although

Mr. Singh then promptly filed an

In the meantime, on June 25, 2013, plaintiff Maloney

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For brevity’s sake, hereinafter the court will refer to this as
“the TRO motion.”

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filed a First Amended Complaint (“FAC”) (Doc. 11).2

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single count complaint alleges strictly a violation of RLUIPA

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against a single defendant, Mr. Ryan.

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that defendant Ryan rescinded an ADOC policy regarding

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inmates’ possession of religious books, “substantially

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burdening” the “religious exercise of Dawwah[,]” which is

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“require[d] [of] [M]uslim practitioner[s][.]”

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at 4:10; at 3, ¶ 3.

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discussed below, including how the court intends to proceed

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The plaintiff alleges

FAC (Doc. 11)

The ramifications of the FAC are

given that recent filing by the plaintiff.

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That

Discussion
Preliminarily, the court observes that plaintiff’s FAC

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does not comport with LRCiv 15.1(b).

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among other things, “a separate notice of filing the amended

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complaint[,]” to which a copy of the amended pleading is

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attached. LRCiv 15.1(b).

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however.

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Maloney also did not “indicate[] in what respect [the FAC]

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differs from the pleading which it amends, by bracketing or

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striking through the text that was deleted and underlining

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the text that was added.”

That Rule requires,

Plaintiff Maloney did not do that,

Despite the requirements of that Rule, plaintiff

See id.

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Plaintiff’s failure to comply with that Local Rule is

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troubling, but his situation is further complicated by the

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manner in which he presents the FAC.

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contains a single RLUIPA count, designated as “Count IV[,]”

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and lists only Mr. Ryan as a defendant. FAC (Doc. 11) at 3.

As just mentioned, it

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The FAC first came to the court’s attention when it was entered
the next day, June 26, 2013.

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The FAC is void of any mention of Ramadan whatsoever.

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other hand, plaintiff’s original complaint, set forth three

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counts, enumerated as Counts I, II, and III

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to Ramadan, and listed five defendants, including Mr. Ryan.

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Because the FAC does not mention any of those original three

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counts pertaining to Ramadan, and because it begins with

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Count IV, presumably, the plaintiff intends the FAC to be a

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continuation of the complaint and that the two complaints be

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read together.

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On the

– all pertaining

While perhaps a logical presumption for a layperson,

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settled law undermines such a presumption.

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“the general rule is that an amended complaint supercedes the

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original complaint and renders it without legal effect[.]”

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en

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banc) (emphasis added); see also Valadez–Lopez v. Chertoff,

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656 F.3d 851, 857 (9th Cir. 2011) (quotation marks and

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citations omitted) (“[I]t is well-established that an amended

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complaint supersedes the original, the latter being treated

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thereafter as non-existent.”).

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complaint is filed, the original pleading no longer serves

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any function in the case.”

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WL 2020715, at *1 n. 1 (D.Hawai’i May 24, 2011).

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Application of that rule here means that

That is because

Simply put,“[o]nce an amended

Hasegawa v. State of Hawaii, 2011

plaintiff’s

24 FAC, which is void of any allegations pertaining to Ramadan,
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26 Ramadan issues.

Consequently, because plaintiff’s original

27 complaint “no longer serves any function in this case[,]” it
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1 relief solely related to Ramadan.

See id.

Thus, the court

2 VACATES its order filed July 20, 2013 (Doc. 9), ordering
3 expedited briefing as to plaintiff’s TRO motion and DENIES
4 that motion as moot.3
5 emergency motion by

Likewise, the court DENIES as moot the
defendants Linderman (Doc. 12).

As

6 explained below, however, because the court is granting
7 plaintiff leave to file a second amended complaint, this order
8 does not preclude the filing of

a motion for a temporary

9 restraining order and/or a preliminary injunction at a later
10 date.
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“Pro se litigants must follow the same rules of

12 procedure that govern other litigants.” King v. Atiyeh, 814
13 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by
14 Lacey, 693 F.3d 896; see also Ghazali v. Moran, 46 F.3d 52 (9th
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The court recognizes that it has a “duty to construe pro se
pleadings liberally[.]” See Bernhardt v. Los Angeles County, 393 F.3d 920,
Consistent with that duty, and disregarding the
925 (9th Cir. 2003).
plaintiff’s specific indication that the pleading filed June 25, 2013, is
a “First Amended Complaint,” (Doc. 11), the court will briefly consider
whether the FAC could, instead, be construed as a supplemental pleading.
The distinction between a supplemental and an amended pleading is
significant because a “supplemental pleading, unlike [an] amended pleading,
does not supersede the original pleading[.]” See Gregory v. Hill, 2013 WL
2130887, at *4 n. 1 (C.D.Cal. April 5, 2013) (citing Puget Sound Power &
Light Co. v. City of Seattle, 5 F.2d 393, 393 (9th Cir. 1925), adopted by
2013 WL 2138540 (C.D.Cal. May 13, 2013).
The FAC cannot be read as a supplemental pleading, however, because
by definition supplemental pleadings pertain to matters that “happened after
the date of the pleading to be supplemented.”
See Fed.R.Civ.P. 15(d)
(emphasis added).
Plaintiff Maloney’s FAC pertains to a matter which
occurred prior to the filing of his original complaint though. In
particular, the FAC alleges a RLUIPA violation by defendant Ryan when, in
January 30, 2013, he allegedly rescinded a policy “allowing for an unlimited
number of religious books, provided they fit into a property box.” FAC
(Doc. 11) at 3-4, ¶ 3. Plaintiff filed his original complaint after that,
however, on February 12, 2013. Thus, the court declines to construe the FAC
as a supplemental, rather than an amended pleading. Plaintiff therefore
cannot avail himself of the rule that a supplemental pleading does not
supersede the original pleading.

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1 Cir. 1995) (“pro se litigants are bound by the rules of
2 procedure.”).

At the same time, however, the court recognizes

3 its obligation to “ensure that pro se litigants do not
4 unwittingly fall victim to procedural requirements.”
5 v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996).

Waters

Balancing those

6 competing concerns, the court finds that “justice requires”
7 allowing plaintiff to file a second amended complaint, if he
8 so chooses.
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See Fed R. Civ. P.

15(a)(2).

Based upon the foregoing, the court HEREBY ORDERS that:
(1) the order filed June 20, 2013 (Doc. 9), requiring

11 expedited briefing as to plaintiff’s TRO motion is VACATED;
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(2) the “Emergency Motion for Extended Time Re[:]

13 Plaintiff’s Motion for Temporary Restraining Order” by
14 defendants Linderman and Ryan (Doc. 12) is DENIED as moot;
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(3) Plaintiff’s “Motion for a Temporary Restraining Order

16 and/or Preliminary Injunction” (Doc. 8) is DENIED as moot; and
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(4) plaintiff is GRANTED leave to file a second amended

18 complaint, which shall be filed no later than twenty (20) days
19 from the date of entry of this order.
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DATED this 28th day of June, 2013.

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27 Copies to plaintiff pro se and Neil Singh, Arizona State

Assistant Attorney General
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