Thomas Jr v. Westgate Resort Casino et al

Filing 10

ORDER. IT IS HEREBY ORDERED that Plaintiff shall have until 8/25/17 to file an amended complaint. Signed by Magistrate Judge George Foley, Jr on 8/10/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 MARK THOMAS JR., 8 9 10 11 12 ) ) Plaintiff, ) ) vs. ) ) WESTGATE RESORT & CASINO and ) CAMI CHRISTENSEN ) ) Defendant. ) __________________________________________) Case No. 2:16-cv-02261-JAD-GWF ORDER 13 14 15 16 This matter is before the Court on Plaintiff’s Response to the Court’s Order to Show Cause (ECF No. 9), filed on August 7, 2017. Plaintiff, who is proceeding in this action pro se, filed a Application for Leave to Proceed in 17 Forma Pauperis (ECF No. 1) along with a Complaint (ECF No. 1-1) on September 27, 2017. The 18 Court issued a Screening Order on June 1, 2017 granting Plaintiff in forma pauperis status but 19 dismissing Plaintiff’s complaint for failure to properly allege that the Court has jurisdiction over his 20 claims and for failure to sufficiently allege a legal theory under which he sought to sue Defendants. 21 See ECF No. 2. The Court gave Plaintiff until June 30, 2017 to file an amended complaint that 22 would correct those deficiencies. Id. Plaintiff did not file an amended complaint. The Court 23 ordered Plaintiff to show cause, in writing, why this case should not be dismissed for his failure to 24 file an amended complaint. See ECF No. 6. After a brief extension of time, Plaintiff filed the 25 instant response. 26 Plaintiff’s filing is not responsive to the Court’s Order to Show Cause because it does not 27 provide an explanation for why he failed to file an amended complaint. Rather, the response simply 28 states what allegedly happened to him while at Defendant’s place of business that prompted Plaintiff 1 to initiate this lawsuit. Moreover, the Court cannot construe Plaintiff’s response to be an amended 2 complaint because it still fails to address the issues raised by the Court in its Screening Order. 3 Plaintiff does not address how the Court has jurisdiction over his claims; nor does he state a legal 4 theory or cause of action. The Court understands that navigating the legal system can be difficult 5 for a pro se litigant. Therefore, the Court will allow Plaintiff additional time to file an amended 6 complaint. Plaintiff is advised that he should refer to this Court’s Screening Order (ECF No. 2) and 7 correct the deficiencies noted therein. 8 9 If Plaintiff elects to proceed in this action by filing an amended complaint, he is informed that the court cannot refer to a prior pleading in order to make his amended complaint complete. 10 Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any 11 prior pleading. This is because, as a general rule, an amended complaint supersedes the original 12 complaint. See Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see Loux v. Rhay, 375 13 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended complaint, the original pleading no 14 longer serves any function in the case. Therefore, in an amended complaint, as in an original 15 complaint, each claim and the involvement of each defendant must be sufficiently alleged. Plaintiff 16 is advised that litigation will not commence upon the filing of an amended complaint. Rather, the 17 Court will need to conduct an additional screening of the amended complaint pursuant to 28 U.S.C. 18 § 1915(e). Accordingly, 19 IT IS HEREBY ORDERED that Plaintiff shall have until August 25, 2017 to file an 20 amended complaint. If Plaintiff fails to file an amended complaint or fails to cure the deficiencies 21 identified in the Court’s Screening Order, the Court will recommend that the complaint be 22 dismissed with prejudice. 23 DATED this 10th day of August, 2017. 24 25 26 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 27 28 2

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