O'Neal v. Empire Fire and Marine Ins. Co et al

Filing 36

ORDER. IT IS THEREFORE ORDERED that Plaintiff Wendell Dwayne ONeal's in forma pauperis status is REVOKED. IT IS FURTHER ORDERED that the court will not screen 30 Plaintiff's second amended complaint and that this case will proceed on t he normal litigation track. IT IS FURTHER ORDERED that 30 Plaintiff's second amended complaint is deemed filed as of the date of this order. IT IS FURTHER ORDERED that Plaintiff must serve the Defendants in compliance with Federal Rule of Civil Procedure 4 within 90 days from the date of this order. See Fed. R. Civ. P. 4(m). Signed by Magistrate Judge Carl W. Hoffman on 5/4/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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WENDELL DWAYNE O’NEAL,
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Plaintiff,
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vs.
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EMPIRE FIRE AND MARINE INS. CO., et al.,
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Defendants.
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__________________________________________)

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Case No. 2:16-cv-02313-JCM-CWH
ORDER

On January 27, 2017, the court entered a screening order that, among other things,

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(1) granted Plaintiff Wendell Dwayne O’Neal’s application to proceed in forma pauperis and

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(2) dismissed his amended complaint without prejudice for Plaintiff to file a second amended

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complaint. (Screening Order (ECF No. 25).) Plaintiff subsequently filed a second amended

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complaint (ECF No. 27), an errata to the second amended complaint (ECF No. 29), and another

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second amended complaint (ECF No. 30).1 Additionally, on April 28, 2017, Plaintiff paid the

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$400.00 filing fee for a civil case. (Receipt of Payment (ECF No. 33).)

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Typically, when a plaintiff who is proceeding in forma pauperis files an amended

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complaint, the court screens the amended complaint under 28 U.S.C. § 1915(e), just as the court

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screens the original complaint. In this case, given that Plaintiff has now paid the full filing fee, the

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court will revoke Plaintiff’s in forma pauperis status as it is no longer necessary and will not screen

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Plaintiff is advised that his second amended complaint (ECF No. 30), filed on February 9,
2017, is now the operative complaint in this case. It is a “well-established doctrine that an amended
pleading supersedes the original pleading.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
After amendment, “the original pleading no longer performs any function and is treated thereafter as
non-existent.” Id. (quotation omitted). Thus, parties and claims that are mentioned in the original
complaint that are not included in an amended complaint are no longer part of the case, and the court
cannot refer to a prior complaint to make an amended complaint complete. See id. Going forward, the
court will not consider the allegations in Plaintiff’s previous pleadings and will only analyze the
allegations in Plaintiff’s second amended complaint (ECF No. 30).

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the seconded amended complaint under § 1915(e). The court therefore will order this case to

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proceed on the normal litigation track as guided by the Federal Rules of Civil Procedure.
IT IS THEREFORE ORDERED that Plaintiff Wendell Dwayne O’Neal’s in forma pauperis

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status is REVOKED.

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IT IS FURTHER ORDERED that the court will not screen Plaintiff’s second amended
complaint (ECF No. 30) and that this case will proceed on the normal litigation track.

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IT IS FURTHER ORDERED that Plaintiff’s second amended complaint (ECF No. 30) is
deemed filed as of the date of this order.

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IT IS FURTHER ORDERED that Plaintiff must serve the Defendants in compliance with

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Federal Rule of Civil Procedure 4 within 90 days from the date of this order. See Fed. R. Civ. P.

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4(m).

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DATED: May 4, 2017
________________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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