Hiser v. Nevada Department of Corrections et al

Filing 65

ORDER that Amended Complaint, if Plaintiff chooses to file one is due 12/14/2018; Clerk directed to send Plaintiff the approved § 1983 complaint form with instructions and a copy of ECF No. 1 his original complaint and ECF No. 52 U SCA Memorandum (Mailed to P on 11/9/2018); if Plaintiff chooses not to file an amended complaint curing the stated deficiencies of the complaint, this action will be dismissed with prejudice. Signed by Judge Robert C. Jones on 11/9/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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) Case No.: 2:15-CV-00814-RCJ-PAL
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) ORDER
Plaintiff,
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vs.
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NEVADA DEPARTMENT OF
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CORRECTIONS, et al.,
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Defendants.
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__________________________________ )
BRIAN HISER,

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On August 30, 2017, the United States Court of Appeals for the Ninth Circuit,

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affirmed and reversed in part the District Court (ECF No. 52). This Court granted
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Plaintiff’s Motion to Stay Proceedings to allow Plaintiff Bryan Hiser the opportunity to
retain new counsel on or before March 30, 2018. (ECF No. 59).
On July 26, 2018 the Court set a telephonic status conference (ECF No. 61).
Plaintiff filed a Notice (ECF No. 63) with the Court stating he declined to attend the
status conference, “every attorney I contacted said I had no lawsuit I could not retain
counsel.”
The Court held the Telephonic Status Conference at 9:00 A.M., August 20, 2018
and noted for the record that Mr. Hiser had declined to attend the hearing. A discussion

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was held regarding the Ninth Circuit’s ruling and how to proceed. The Court directed
Mr. Hiser to show cause why this case should not be dismissed for failure to prosecute

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on or before September 30, 2018. On August 20, 2018, a copy of the minutes of
proceedings was provided to Mr. Hiser via U.S. Mail. (ECF No. 64).

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Plaintiff may proceed pro se and is granted leave to file an amended complaint to

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cure the deficiencies of the complaint pursuant to the United States Court of Appeals for

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the Ninth Circuit Memorandum (ECF No. 52).

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If Plaintiff chooses to file an amended complaint he is advised that an amended

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complaint supersedes (replaces) the original complaint and, thus, the amended

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complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner &

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Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was

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named in the original complaint is irrelevant; an amended pleading supersedes the
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original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding

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that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims

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in a subsequent amended complaint to preserve them for appeal). Plaintiff’s amended

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complaint must contain all claims, defendants, and factual allegations that Plaintiff

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wishes to pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint on

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this Court’s approved prisoner civil rights form and it must be entitled “First Amended

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Complaint.”

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The Court notes that if Plaintiff chooses to file an amended complaint curing the

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deficiencies, as outlined in this order, Plaintiff shall file the amended complaint ON OR
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BEFORE FRIDAY, DECEMBER 14, 2018. If Plaintiff chooses not to file an amended
complaint curing the stated deficiencies, the Court will dismiss this action with prejudice.

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IT IS HEREBY ORDERED that if Plaintiff chooses to file an amended complaint
curing the deficiencies of his complaint in accordance with the Memorandum (ECF No.

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52), Plaintiff shall file the amended complaint on or before FRIDAY, DECEMBER 14,
2018.
IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the
approved form for filing a § 1983 complaint, instructions for the same, a copy of his
original complaint (ECF No. 1) and the United States Court of Appeals for the Ninth

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Circuit Memorandum (ECF No. 52). If Plaintiff chooses to file an amended complaint,

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he must use the approved form and he shall write the words “First Amended” above the

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words “Civil Rights Complaint” in the caption.

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IT IS FURTHER ORDERED that, if Plaintiff chooses not to file an amended

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complaint curing the stated deficiencies of the complaint, this action will be dismissed
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with prejudice.
IT IS SO ORDERED.
Dated this 9th day of November, 2018.

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ROBERT C. JONES
Senior District Judge

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