Montgomery v. Las Vegas Metropolitan Police Department et al

Filing 46

ORDER Granting in part and Denying in part 42 Motion to Dismiss or Alternatively, Motion to Strike 41 Statement of Status. Defendants request to dismiss is denied and their request to strike is granted. Plaintiffs 41 Opposition Pleading is ordered stricken. Signed by Judge Miranda M. Du on 1/9/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BOBBY LEE MONTGOMERY,

Case No. 2:12-cv-00817-MMD-NJK

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Plaintiffs,
ORDER

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v.
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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,

(Defendant’s Motion to Dismiss –
dkt. no. 42)

Defendants.

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I.

SUMMARY

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Before the Court is Defendants’ Motion to Dismiss, or Alternatively Strike

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Plaintiff’s “Opposition Pleading Motion for Judgment With Leave to Amend Court Order

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with Supported Documentary Records and Sword [sic] Affidavit”. (Dkt. no. 42.)

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II.

BACKGROUND

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The relevant facts are recited in the Court’s April 19, 2013, Order (dkt. no. 40.) In

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that Order, the Court addressed Defendants’ motions to dismiss and Plaintiff’s Motion for

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Summary Judgment. In sum, the Court dismissed claims against all individual Clark

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County Defendants with prejudice, as they are absolutely immune from suit for

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performance of their prosecutorial duties. The Court dismissed the following claims: (1)

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claims against the entity defendants, Clark County and LVMPD, as well those against

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individual defendants in their official capacities for failure to conform to the requirements

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of Monell v New York City Dept. of Social Servs., 436 U.S. 658 (1978); (2) all claims

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against individual defendants unsupported by allegations of personal involvement in

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Plaintiff’s injuries; and (3) Plaintiff’s malicious prosecution claim for failure to allege

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termination of the criminal case. The Court gave Plaintiff twenty one (21) days to file an

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Amended Complaint should he wish to amend these claims. The Court further ordered

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Plaintiff, within twenty one (21) days, to file evidence in the form of a sworn statement or

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court document that demonstrates that his prior criminal proceeding has terminated.

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In response to the Court’s Order, Plaintiff filed a document entitled “Opposition

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Pleading Motion for Judgment With Leave to Amend Court Order with Supported

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Documentary Records and Sword [sic] Affidavit” (“Statement”).

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Statement consists of 112 pages that appear to be a compilation of various documents,

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including a copy of the first page of the Criminal Complaint filed against Plaintiff, the

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docket sheet for the criminal case with the last entry being jury trial on April 4, 2011, and

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III.

The

excerpts of Nevada’s Revised Statutes.

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(Dkt. no. 41.)

DISCUSSION

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Defendants seek dismissal or to strike the Statement, arguing that the Statement

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is confusing and an improper attempt to amend the Complaint. The Court agrees with

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Defendants. The Statement is incoherent and rambling at best. Plaintiff asserts that he

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can “state a claim against the LVMPD Defendants officers and entity the employer of the

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Defendants.” (Dkt. no. 41 at 1.) However, the Statement also attaches a messy array of

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other documents, which are comingled with what appears to be allegations against

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various Defendants.

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Rule 8(a) of the Federal Rules of Civil Procedure provides that a pleading that

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states a claim for relief must, among other requirements, contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” While allegations of

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a pro se litigant are held to “less stringent standards than formal pleadings drafted by

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lawyers”, Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant “must flow the

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same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987). Here, the Statement is plainly deficient even under this lower standard

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and fails to state any claims on which relief may be granted. In fact, the Statement is so

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incoherent that the Court cannot even construe the document as an amended pleading

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filed in compliance with the Court’s Order.
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In light of Plaintiff’s pro se status, the Court will strike the Statement but will

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extend the time for Plaintiff to comply with the Court’s Order. First, Plaintiff has until

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February 3, 2014 to file evidence in the form of a sworn statement or court document

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that demonstrates that his prior criminal proceeding has terminated. Second, Plaintiff

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has until February 3, 2014 to file an Amended Complaint should he wish to amend the

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claims that have been dismissed with leave to amend. If Plaintiff chooses to file an

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amended complaint, Plaintiff should know that an amended complaint supersedes the

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original complaint and, thus, the amended complaint must be complete in itself. See Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(holding that “[t]he fact that a party was named in the original complaint is irrelevant; an

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amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff

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is not required to re-allege such claims in a subsequent amended complaint to preserve

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them for appeal). Plaintiff’s amended complaint must contain all claims, defendants, and

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factual allegations that Plaintiff wishes to pursue in this lawsuit. This case will proceed on

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the remaining claims in the Complaint in the event Plaintiff fails to file a proper amended

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complaint in compliance with the Court’s orders and Rule 8 of the Federal Rules of Civil

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Procedures.

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IV.

CONCLUSION

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It is therefore ordered that Defendants’ Motion to Dismiss, or Alternatively Strike

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Plaintiff’s “Opposition Pleading Motion for Judgment With Leave to Amend Court Order

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with Supported Documentary Records and Sword [sic] Affidavit” (dkt. no. 42) is granted

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in part and denied in part. Defendants’ request to dismiss is denied and their request to

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strike is granted. Plaintiff’s Opposition Pleading (dkt. no. 41) is ordered stricken.

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DATED THIS 9th day of January 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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