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)

Download PDF
1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 WENDELL DWAYNE O’NEAL, 6 7 8 9 10 ) ) Plaintiff, ) ) vs. ) ) EMPIRE FIRE AND MARINE INS. CO., et al., ) ) Defendants. ) __________________________________________) 11 Case No. 2:16-cv-02313-JCM-CWH ORDER On January 27, 2017, the court entered a screening order that, among other things, 12 (1) granted Plaintiff Wendell Dwayne O’Neal’s application to proceed in forma pauperis and 13 (2) dismissed his amended complaint without prejudice for Plaintiff to file a second amended 14 complaint. (Screening Order (ECF No. 25).) Plaintiff subsequently filed a second amended 15 complaint (ECF No. 27), an errata to the second amended complaint (ECF No. 29), and another 16 second amended complaint (ECF No. 30).1 Additionally, on April 28, 2017, Plaintiff paid the 17 $400.00 filing fee for a civil case. (Receipt of Payment (ECF No. 33).) 18 Typically, when a plaintiff who is proceeding in forma pauperis files an amended 19 complaint, the court screens the amended complaint under 28 U.S.C. § 1915(e), just as the court 20 screens the original complaint. In this case, given that Plaintiff has now paid the full filing fee, the 21 court will revoke Plaintiff’s in forma pauperis status as it is no longer necessary and will not screen 22 23 1 24 25 26 27 28 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). 1 the seconded amended complaint under § 1915(e). The court therefore will order this case to 2 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 3 4 status is REVOKED. 5 6 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. 7 8 IT IS FURTHER ORDERED that Plaintiff’s second amended complaint (ECF No. 30) is deemed filed as of the date of this order. 9 IT IS FURTHER ORDERED that Plaintiff must serve the Defendants in compliance with 10 Federal Rule of Civil Procedure 4 within 90 days from the date of this order. See Fed. R. Civ. P. 11 4(m). 12 13 14 15 DATED: May 4, 2017 ________________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?