Aytch v. Baker et al

Filing 17

ORDER Granting in Part and Denying in Part 14 Motion for Leave to Amend Complaint.IT IS FURTHER ORDERED that the Clerk of Court is directed to send to plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his proposed amended complaint 14 -1. Amended Complaint due 7/8/16. Signed by Judge Jennifer A. Dorsey on 6/7/16. (Copies have been distributed pursuant to the NEF - TR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
Case No. 2:15-cv-0958-JAD-PAL

Martinez S. Aytch,

4

Plaintiff

5
6

v.

7

James G. Cox, et al,

Order Granting Leave to Amend
[ECF No. 14]

Defendants

8
9

Pro se prisoner Martinez Aytch brings this civil-rights action over events that occurred during

10
11

his incarceration at Nevada’s Ely State Prison. I screened his original complaint; dismissed with

12

prejudice his First Amendment retaliation claim; and permitted his claims for denial of access to the

13

courts and violations of his due-process, free-exercise-of-religion, and equal-protection rights to

14

proceed.1 Aytch moves to amend his complaint to add the last name of the defendant he identified in

15

his complaint as “Edward B.”2 But his proposed amended complaint continues to allege a First

16

Amendment retaliation claim in count one,3 despite my dismissal of that claim with prejudice.

17

Defendants oppose the amendment only to the extent that Aytch seeks to revive this dismissed

18

claim.4 I grant Aytch’s motion in part: he may file an amended complaint, but he must first delete

19

from it his First Amendment retaliation claim.
Discussion

20

Rule 15 of the Federal Rules of Civil Procedure directs district courts to “freely give leave

21
22
23
24

1

ECF No. 3.

25

2

ECF No. 14.

26

3

ECF No. 14-1 at 9.

27

4

ECF No. 15.

28

1

1

when justice so requires.”5 And the Ninth Circuit has consistently held that leave to amend “should

2

be granted more liberally to pro se plaintiffs.”6

3

Good cause exists to grant Aytch leave to amend his complaint to include Edward B.’s last

4

name. However, I will not accept Aytch’s proposed amended complaint because it continues to

5

assert the First Amendment retaliation claim in count one that I dismissed with prejudice in my

6

screening order. Accordingly, I grant Aytch leave to amend, but he must file a new version of his

7

amended complaint that deletes the First Amendment retaliation claim from count one. The Clerk of

8

Court will send him a blank § 1983 form, instructions for completing that form, and a copy of his

9

original complaint. He must use that form and write the words “First Amended” above the words

10

“Civil Rights Complaint” in the caption. And he must delete the First Amendment retaliation claim

11

and the facts supporting it. Aytch is further advised that if he files an amended complaint, the

12

original complaint (ECF No. 4) no longer serves any function in this case, so each new claim and

13

each defendant’s participation in the alleged violations must be alleged specifically in the amended

14

complaint. The court will not refer to a prior pleading or other documents to make Aytch’s amended

15

complaint complete. The amended complaint must be complete in and of itself without reference to

16

prior pleadings or other documents.

17

Conclusion

18

Accordingly, with good cause appearing, IT IS HEREBY ORDERED that Aytch’s Motion

19

for Leave to Amend [ECF No. 14] is GRANTED in part and DENIED in part. Aytch may

20

amend his complaint to add defendant Edward B.’s last name; however, I will not accept his

21

proposed amended complaint [ECF No. 14-1].

22

IT IS FURTHER ORDERED that the Clerk of Court is directed to send to plaintiff the

23

approved form for filing a § 1983 complaint, instructions for the same, and a copy of his proposed

24

amended complaint (ECF No. 14-1). Plaintiff must use the approved form and must write the words

25
26

5

Fed. R. Civ. P. 15(a)(2).

27

6

Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).

28

2

1

“First Amended” above the words “Civil Rights Complaint” in the caption. And he must delete

2

from the amended complaint the First Amendment retaliation claim presently pled in count one.

3

Plaintiff must file the amended complaint by July 8, 2016.

4

DATED June 7, 2016

5
________________________________
__________________
_
_
_ _
Jennifer A. Dorsey
Dor
Dorsey
United States District Judge
S
Di i J d

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3