Ramos-Rodriguez v. Las Vegas Metropolitan Police Department et al

Filing 17

ORDER that plaintiff is granted leave to file second amended complaint to cure deficiencies no later than 5/30/2017. Signed by Magistrate Judge Nancy J. Koppe on 4/27/2017. (Copies have been distributed pursuant to the NEF, cc: 1983 and 13 to P - JM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MANUEL RAMOS RODRIGUEZ,
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Plaintiff(s),
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vs.
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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,
Defendant(s).

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Case No. 2:15-cv-01212-GMN-NJK
ORDER

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On June 25, 2015, Plaintiff filed an application to proceed in forma pauperis, along with a

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complaint. Docket No. 1. On June 26, 2015, the Court denied Plaintiff’s application without

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prejudice for failure to include a financial certificate, certified copy of his inmate trust account

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statement, and a signed financial affidavit. Docket No. 2 at 1. On July 21, 2015, Plaintiff filed a

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renewed application to proceed in forma pauperis. On July 29, 2015, the Court again denied

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Plaintiff’s renewed application without prejudice, again because it was incomplete. Docket No. 4

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at 1-2. On August 19, 2015, Plaintiff filed a second renewed application to proceed in forma

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pauperis, which the Court granted on January 12, 2016. Docket Nos. 5, 6. The Court later amended

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its order granting Plaintiff’s application to proceed in forma pauperis. Docket No. 7.

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On January 18, 2017, the Court issued an order screening Plaintiff’s complaint. Docket No.

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9. The Court found that Plaintiff’s Fourth and Fourteenth Amendment claims against Defendants

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Beck, Escartin, Holloway, Laurenco, Rich, Porter, and Thomas were sufficient for screening

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purposes. However, the Court dismissed Plaintiff’s complaint with leave to amend because, inter

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alia, Plaintiff failed to fully explain the circumstances of, and individuals relevant to, his claim for

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medical mistreatment. Id. at 4-5.1 On February 16, 2017, Plaintiff filed an amended complaint,

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which the Court will now screen according to the standards previously identified in Docket No. 9.

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I.

ANALYSIS

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As a preliminary matter, the Court has already determined that Plaintiff’s Fourth and

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Fourteenth Amendment claims against Defendants Beck, Escartin, Holloway, Laurenco, Rich, Porter,

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and Thomas are sufficient for screening purposes. Docket No. 9. The Court has already allowed

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these claims to move forward, see Docket No. 10, and therefore does not address the portions of

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Plaintiff’s amended complaint related to these defendants.

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In his amended complaint, Plaintiff adds LVMPD Sheriff Lombardo and Undersheriff

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McMahill as defendants. Docket No. 13 at 4-5. Plaintiff alleges that these defendants’ “failure to

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properly train the officers under their supervision . . . was a major driving force” behind the incident

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at issue in this action. Id. at 9. It is unclear whether Plaintiff wishes to pursue a state law claim

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against these defendants. Similarly, it is unclear whether Plaintiff wishes to pursue claims against

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them under 42 U.S.C. § 1983, as Plaintiff fails to allege which of his constitutional rights their

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actions violated. See id. Therefore, the Court has insufficient information to determine whether

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Plaintiff states a claim upon which relief can be granted against Defendants Lombardo and

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McMahill.

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Plaintiff’s amended complaint also adds Sergeant Renolds and Doctors Browoler, Koyotan,

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Duran, and Zinser as defendants. Docket No. 13 at 5-6. Plaintiff appears to attempt to state a § 1983

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claim for medical neglect under the Eighth Amendment against these defendants. See id. at 5-6, 11-

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The Court also found that Plaintiff failed to state a claim against the Las Vegas
Metropolitan Police Department (“LVMPD”). Id. at 4. However, Plaintiff’s amended complaint
does not name LVMPD as a defendant, so the Court infers that Plaintiff does not wish to pursue any
claims against it and finds this issue moot.

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13. However, Plaintiff fails to demonstrate that these defendants acted under color of law, instead

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alleging that they acted “with bias” and “with neglect.” Id. at 5-6; see also Anderson v. Warner, 451

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F.3d 1063, 1067 (9th Cir. 2006). Thus, Plaintiff fails to state a claim upon which relief can be

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granted as to Defendants Renolds, Browoler, Koyotan, Duran, and Zinser.

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II.

CONCLUSION

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Accordingly, IT IS ORDERED that:

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1.

Plaintiff is granted leave to file a second amended complaint to cure the deficiencies

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noted above. If Plaintiff chooses to file a second amended complaint he is advised

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that a second amended complaint supersedes (replaces) the amended complaint and,

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thus, the second amended complaint must be complete in itself. See Hal Roach

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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;

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

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

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a plaintiff is not required to reallege such claims in a subsequent amended complaint

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to preserve them for appeal). Plaintiff’s second amended complaint must contain all

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claims, defendants, and factual allegations that Plaintiff wishes to pursue in this

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lawsuit.

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2.

If Plaintiff chooses to file a second amended complaint curing the deficiencies, as

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outlined in this order, Plaintiff shall file the second amended complaint no later than

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May 30, 2017. If Plaintiff chooses not to file a second amended complaint curing

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the stated deficiencies, this action shall continue to proceed on the Fourth and

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Fourteenth Amendment claims against Defendants Beck, Escartin, Holloway,

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Laurenco, Rich, Porter, and Thomas only.

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3.

The Clerk of Court shall send to Plaintiff the approved form for filing a § 1983
complaint, instructions for the same, and a copy of his amended complaint (Docket

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No. 13). If Plaintiff chooses to file a second amended complaint, he must use the

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approved form and he must write the words “Second Amended” above the words

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“Civil Rights Complaint” in the caption.

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IT IS SO ORDERED.

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DATED: April 27, 2017.

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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