SMith v. Connell et al

Filing 28

ORDER Dismissing without prejudice 24 Plaintiff's Motion to Add a Claim. IT IS FURTHER ORDERED that Plaintiff is granted leave to amend complaint by 4/16/14. Signed by Magistrate Judge George Foley, Jr on 3/17/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TONY SMITH,

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Plaintiff,
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vs.
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STEPHEN CONNELL, et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-02140-JCM-GWF
ORDER

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This matter comes before the Court on Plaintiff’s Motion to Add Claim to Complaint (#24),
filed on December 12, 2013.
BACKGROUND
As the basis for his claims, Plaintiff avers that on October 5, 2012 at the Planet Hollywood

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Casino in Las Vegas, he noticed a purse on a stool. Believing it to be misplaced, Plaintiff claims he

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picked up the purse and brought it to a “patron station” to give it to a casino employee. Upon

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reaching the station, several police officers apprehended Plaintiff and detained him in a secured

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room. According to Plaintiff, he later learned the purse was a “bait purse” planted and monitored

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by the Las Vegas Metropolitan Police Department, and contained a casino redemption ticket for

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$650.00. Plaintiff was arrested and transported to a detention facility. On or around November 8,

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2012, the State of Nevada filed an information charging Plaintiff with grand larceny. Plaintiff

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maintains he had no knowledge of the redemption ticket inside the purse, and merely intended to

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give the purse to a casino employee for safeguarding.

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Plaintiff filed his initial Complaint (#1) on December 17, 2012, alleging claims for false
arrest and malicious prosecution. Plaintiff filed a Motion for Leave to Amend the Complaint (#2)

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on December 18, 2012, with a proposed Amended Complaint alleging claims for Ineffective

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Assistance of Counsel and Denial of Speedy Trial. The Court granted leave to amend, and the

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Amended Complaint was filed. See March 6, 2013 Order, Doc. #3. The Court noted that the

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original Complaint (#1) was superseded by the Amended Complaint (#4), which did not re-allege

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the false arrest or malicious prosecution claims. Id. The Court nevertheless addressed the merits of

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those two claims. Id. The Court dismissed the Amended Complaint (#4), with leave to amend to

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re-allege the false arrest claim only. Id. at 6:27-7:3. Despite being granted leave to re-allege only a

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claim for false arrest, See March 6, 2013 Order, Doc. #3 at 6:27-7:3, Plaintiff filed his Second

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Amended Complaint (#6) asserting claims for violation of due process, Apprendi violations,

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prosecutorial misconduct, false arrest, and Brady violations. The Court addressed the merits of

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Plaintiff’s Second Amended Complaint (#6) and dismissed it without prejudice. Plaintiff was

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instructed not to re-file any of the dismissed claims until and unless his state conviction is set aside

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or otherwise invalidated. Plaintiff was warned that if he files any barred claims in this Court

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regarding his state conviction while the conviction is still in place, the Court would recommend to

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the District Judge that the claims be dismissed with prejudice. Plaintiff then filed the present

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Motion to Supplement/Add a Claim (#24) on December 5, 2013, alleging claims for ineffective

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assistance of counsel, freedom of speech violations, and being denied access to the court.

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DISCUSSION

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Although a court must liberally construe pro se pleadings, pro se status does not excuse a

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litigant from his obligation to comply with the fundamental requirements of the Federal Rules of

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Civil Procedure. See Ogden v. San Juan County, 32 F.3d. 452, 455 (10th Cir. 1994). The Court

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cannot refer to a prior pleading to make Plaintiff’s amended complaint complete. Local Rule 15-1

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requires that an amended complaint be complete in itself without reference to any prior pleading.

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This is because, as a general rule, an amended complaint supersedes the original complaint. See

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Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once Plaintiff files an amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in an amended complaint, as

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in an original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.
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Here, Plaintiff has yet to file a Complaint on which the Court has permitted him to proceed.

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Therefore, Plaintiff’s Motion to Add Claims (#24) is premature. The Court considered treating

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Plaintiff’s Motion (#24) as his Third Amended Complaint, however, the pending Motion (#24)

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does not include Plaintiff’s original claim for false imprisonment. As such, the Plaintiff is

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instructed to file his Third Amended Complaint in accordance with Court Order (#18) entered on

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September 26, 2013. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Add a Claim (#24) is dismissed
without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend his complaint.

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Plaintiff shall have until April 16, 2014 to file an amended complaint correcting the previously

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noted deficiencies.

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DATED this 17th day of March, 2014

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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