Banark v. Dzurenda et al

Filing 14

ORDER. IT IS ORDERED that 8 , 9 , 11 , 12 the motions for screening order/status checks are DENIED.IT IS FURTHER ORDERED that 4 , 5 , 6 , 13 the motions to correct complaint are DENIED. IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of 1 -1 his complaint and 4 , 5 , 6 , 13 motions to correct complaint. See Order for details/deadlines. Signed by Magistrate Judge George Foley, Jr on 7/20/17. (Copies have been distributed pursuant to the NEF - MR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 12 ) ) Plaintiff, ) ) v. ) ) JAMES DZURENDA et al., ) ) Defendants. ) ) ___________________________________ ) 13 I. 7 8 9 10 11 LONNIE LEE BANARK, 2:16-cv-02555-JCM-GWF ORDER DISCUSSION 14 Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections 15 (“NDOC”), has filed multiple motions to correct his complaint and multiple motions for a 16 screening order/status check. (ECF No. 4, 5, 6, 8, 9, 11, 12, 13). The Court denies the 17 motions for screening order/status checks. (ECF No. 8, 9, 11, 12). Plaintiff’s complaint is in 18 line for screening. The Court will issue a screening order in due course. 19 With respect to Plaintiff’s corrections, the Court will not piecemeal Plaintiff’s complaint 20 together. Plaintiff’s operative complaint must contain all claims, defendants, and factual 21 allegations that Plaintiff wishes to pursue in this lawsuit. As such, the Court denies the 22 motions to correct errors in the complaint (ECF No. 4, 5, 6, 13) and grants Plaintiff leave to file 23 a fully complete first amended complaint. 24 If Plaintiff chooses to file a first amended complaint he is advised that a first amended 25 complaint supersedes (replaces) the original complaint and, thus, the first amended complaint 26 must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 27 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original 28 complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with 1 prejudice, a plaintiff is not required to reallege such claims in a subsequent amended 2 complaint to preserve them for appeal). Plaintiff’s first amended complaint must contain all 3 claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. 4 Moreover, Plaintiff must file the first amended complaint on this Court’s approved prisoner civil 5 rights form and it must be entitled “First Amended Complaint.” 6 II. For the foregoing reasons, IT IS ORDERED that the motions for screening order/status 7 8 checks (ECF No. 8, 9, 11, 12) are denied. IT IS FURTHER ORDERED that the motions to correct complaint (ECF No. 4, 5, 6, 13) 9 10 CONCLUSION are denied. 11 IT IS FURTHER ORDERED that, if Plaintiff chooses to file a first amended complaint, 12 Plaintiff shall file the first amended complaint within 30 days from the date of entry of this 13 order. 14 IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the 15 approved form for filing a § 1983 complaint, instructions for the same, and a copy of his 16 complaint and motions to correct complaint (ECF No. 1-1, 4, 5, 6, 13). If Plaintiff chooses to 17 file a first amended complaint, he must use the approved form and he shall write the words 18 “First Amended” above the words “Civil Rights Complaint” in the caption. 19 IT IS FURTHER ORDERED that, if Plaintiff does not timely file a first amended 20 complaint, the Court will screen the original complaint (ECF No. 1-1) only and strike all other 21 corrections (ECF No. 4, 5, 6, 13) from the docket. 22 23 DATED: This _____ day of July, 2017. 20th 24 25 _________________________________ United States Magistrate Judge 26 27 28 2

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