Carrillo Franco v. CDOC Executive Director et al

Filing 7

ORDER Directing Plaintiff to File Second and Final Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/06/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02851-BNB
CARRILLO FRANCO,
Plaintiff,
v.
LT. SOLBA, Food Service Department, Official and Individual Capacity,
STURGEON, Nurse Practitioner, Defendant, Official and Individual Capacity,
CINDY NOLD, 16789, Defendant, Official and Individual Capacity,
KERRY BARONI, 16025, Defendant, Official and Individual Capacity,
GRIFFITH MARSHALL, 14298, Defendant, Official and Individual Capacity,
ANTHONY A. DECESARO, Defendant, Official and Individual Capacity, and
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL AMENDED COMPLAINT

Plaintiff, Carrillo Franco, is in the custody of the Colorado Department of
Corrections at the Buena Vista Correctional Facility. He has filed, pro se, a Prisoner
Complaint alleging deprivations of his constitutional rights pursuant to 28 U.S.C. § 1343
and 42 U.S.C. § 1983. Mr. Franco has paid the applicable $400.00 filing fee.
On November 6, 2013, Magistrate Judge Boyd N. Boland reviewed the
Complaint and determined that it was deficient because Plaintiff failed to allege the
personal participation of each named Defendant in a deprivation of his constitutional
rights. Magistrate Judge Boland thus ordered Mr. Franco to file an amended complaint
on the court-approved Prisoner Complaint form within thirty days. Mr. Franco filed an
“Amended Complaint” on December 3, 2013 [Doc. # 6]. However, the December 3
pleading does not include all of the factual allegations in support of the legal claims

asserted in the original Complaint. Instead, Mr. Franco adds new allegations that he
asks the Court to incorporate by reference into his original Complaint.
The Court is not required to construe together Plaintiff’s original Complaint and
Amended Complaint. To the contrary, an amended complaint supercedes and replaces
the original and all other prior complaints. Mink v. Suthers, 482 F.3d 1244 (10th Cir.
2007) (citing In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.2000)); Gilles v.
United States, 906 F.2d 1386, 1389 (10th Cir.1990) (“[A] pleading that has been
amended under Rule 15(a) supersedes the pleading it modifies . . . . ”) (internal
quotation marks omitted). Plaintiff will be afforded one final opportunity to include all of
his allegations and claims in a single pleading titled “Second Amended Complaint.”
Accordingly, it is
ORDERED that Plaintiff, Carillo Franco, file within thirty (30) days from the
date of this order, a Second Amended Complaint that includes all of his allegations
and claims for relief. It is
FURTHER ORDERED that Mr. Franco, shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Franco fails to file a Second Amended
Complaint that complies with this order within the time allowed, the Court may dismiss
some of the claims and defendants without further notice for the reasons discussed
above. It is

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DATED December 6, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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