Altheide v. Kleuczar et al

Filing 10

ORDER granting 5 Motion to Amend/Correct.; granting 6 Motion.; granting 7 Motion to Amend/Correct.; denying 8 Motion.; granting 9 Motion for Leave to File.; Amended Complaint deadline: 30 days from entry of this Order. Signed by Magistrate Judge Nancy J. Koppe on 10/17/16. (Copies have been distributed pursuant to the NEF, Mailed Complaints and Order to P - JM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

12

)
)
Plaintiff,
)
)
v.
)
)
THOMAS KLEUCZAR et al.,
)
)
Defendants.
)
)
___________________________________ )

13

I.

7
8
9
10
11

JASON ARTHUR ALTHEIDE,

2:16-cv-02272-RFB-NJK
ORDER

DISCUSSION

14

On September 27, 2016, Plaintiff, an inmate at the Nye County Detention Center,

15

initiated this lawsuit by submitting a 42 U.S.C. § 1983 civil rights complaint. (ECF No. 1-1).

16

After submitting a fully complete application to proceed in forma pauperis (ECF No. 4), Plaintiff

17

submitted a motion to amend/correct spelling of defendant’s name, a motion to add additional

18

defendants to claim, a motion to amend petition, a motion to provide trust financial statements,

19

and a motion for leave to file and copy request. (ECF No. 5, 6, 7, 8, 9).

20

The Court interprets the motion to amend/correct spelling of defendant’s name, the

21

motion to add additional defendants to claim, the motion to amend petition, and the motion for

22

leave to file and copy request as one motion for leave to file an amended complaint. The

23

Court grants Plaintiff’s motion to amend his complaint. If Plaintiff chooses to file an amended

24

complaint he is advised that an amended complaint supersedes (replaces) the original

25

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

26

Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that

27

“[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading

28

supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

1

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

2

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

3

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

4

pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint on this Court’s

5

approved prisoner civil rights form and it must be entitled “First Amended Complaint.”

6

The Court notes that if Plaintiff chooses to file an amended complaint, Plaintiff shall file

7

the amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses

8

not to file an amended complaint, the Court will screen the original complaint (ECF No. 1-1).

9

The Court denies Plaintiff’s motion to provide trust financial statements as moot. (ECF

10

No. 8). The Court finds that Plaintiff has submitted a fully complete application to proceed in

11

forma pauperis at ECF No. 4.

12

II.

CONCLUSION

13

For the foregoing reasons, IT IS ORDERED that the motion to amend/correct spelling

14

of defendant’s name (ECF No. 5), the motion to add additional defendants to claim (ECF No.

15

6), the motion to amend petition (ECF No. 7), and the motion for leave to file and copy request

16

(ECF No. 9) are construed as one motion for leave to file an amended complaint. The Court

17

GRANTS the motion for leave to file an amended complaint.

18

IT IS FURTHER ORDERED that, if Plaintiff chooses to file an amended complaint,

19

Plaintiff shall file the amended complaint within 30 days from the date of entry of this order.

20

IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the

21

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

22

original complaint (ECF No. 1-1). If Plaintiff chooses to file an amended complaint, he must

23

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

24

Rights Complaint” in the caption.
IT IS FURTHER ORDERED that, if Plaintiff chooses not to file an amended complaint,

25
26

the Court will screen the original complaint (ECF No. 1-1).

27

///

28

///
2

1
2

IT IS FURTHER ORDERED that the motion to provide trust financial statements (ECF
No. 8) is DENIED as moot.

3
4

DATED: This 17th day of October, 2016.

5
6
7

_________________________________
NANCY J. KOPPE
United States Magistrate Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3