Montague v. Jackson et al

Filing 12

ORDER. IT IS ORDERED that, by 6/22/2018, Plaintiff must inform the Court whether he chooses: 1) to go forward with the first amended complaint and the mediation; or 2) to abandon the first amended complaint and the ordered mediation and instead have the Court screen the third amended complaint. IT IS FURTHER ORDERED that the Clerk of the Court shall send Plaintiff a copy of this order, 9 the screening order, a copy of 6 the first amended complaint, and a copy of 11 Plaintiff's third amended complaint. Signed by Magistrate Judge Carl W. Hoffman on 5/30/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HAROLD E. MONTAGUE,

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Case No. 2:16-cv-01680-JAD-CWH
Plaintiff,

ORDER

v.
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MR. JACKSON, et al.,
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Defendants.
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I.

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DISCUSSION
On April 26, 2018, the Court issued a screening order (ECF No. 9) in which it

screened the first amended complaint. In that screening order, the Court determined that
some claims would proceed, and it dismissed some claims without prejudice. (Id. at 7).
The Court also ordered this action to be stayed until July 25, 2018 to allow the parties an
opportunity to engage in mediation and settle their dispute. (Id.) The Court specifically
stated that, during the 90-day stay, “no other pleadings or papers may be filed in this
case.”

(Id.)

Despite this order, on May 23, 2018, Plaintiff filed a “third amended

complaint.”1 (ECF No. 11).
Plaintiff is reminded that an amended complaint must be complete in itself and it
entirely supersedes and replaces any earlier complaints. See Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Thus, an amended

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1 The Court notes that Plaintiff has identified this complaint as a “third amended complaint,” but there is no
second amended complaint.

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complaint must contain all claims, defendants, and factual allegations that Plaintiff may
pursue in the lawsuit. Therefore, Plaintiff is advised that, if he goes forward with the third
amended complaint (ECF No. 11), the Court will consider only that complaint. There is
no guarantee that, after screening the third amended complaint (ECF No. 11), the Court
will allow any claims to proceed. Furthermore, the third amended complaint would go in
line for a new screening order. Due to the Court’s caseload, the Court would not screen
the third amended complaint (ECF No. 11) for months. In addition, if Plaintiff goes forward
with the third amended complaint, the mediation and opportunity for settlement ordered
in the Court’s April 26, 2018 screening order would be terminated, as that screening order
was based on the first amended complaint.

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The Court therefore will give Plaintiff an opportunity to decide whether he wishes:
1) to go forward with the first amended complaint and the mediation on the first amended
complaint as ordered in this Court’s April 26, 2018; or 2) to abandon the first amended
complaint and the ordered mediation and instead have the Court screen the third
amended complaint (ECF No. 11) filed on May 23, 2018. Plaintiff must notify the Court
by June 22, 2018 which course of action he chooses to take.
II.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that, by June 22, 2018, Plaintiff must

inform the Court whether he chooses: 1) to go forward with the first amended complaint
and the mediation on the first amended complaint as ordered in this Court’s April 26,
2018; or 2) to abandon the first amended complaint and the ordered mediation and
instead have the Court screen the third amended complaint (ECF No. 11), which was filed
on May 23, 2018.
IT IS FURTHER ORDERED that, if Plaintiff fails to notify the Court of his choice by
June 22, 2018, the Court will go forward with the mediation and the first amended
complaint.

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IT IS FURTHER ORDERED that the Clerk of the Court shall send Plaintiff a copy
of this order, a copy of its April 26, 2018 screening order (ECF No. 9), a copy of the first
amended complaint (ECF No. 6), and a copy of Plaintiff’s third amended complaint filed
on May 23, 2018 (ECF No. 11).
IT IS FURTHER ORDERED that, if Plaintiff chooses to proceed on the third
amended complaint, Defendants do not have to take any action in this case until further
ordered by the Court.
DATED THIS 30 day of May 2018.

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UNITED STATES MAGISTRATE JUDGE
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