Ruben v. Las Vegas NV city govt et al

Filing 6

ORDER. IT IS ORDERED that Ruben has until 12/15/17 to file a second amended complaint addressing the issues as discussed. IT IS FURTHER ORDERED that if a second amended complaint is later filed, the Clerk of the Court is directed NOT to issue summons on the second amended complaint. Signed by Magistrate Judge Cam Ferenbach on 11/7/17. (Copies have been distributed pursuant to the NEF - ADR)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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TERENCE E. RUBEN,
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Plaintiff,
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Case No. 2:17-cv-01003-JAD-VCF

vs.
CITY OF LAS VEGAS and TEXAS CITY,

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ORDER

Defendants.

AMENDED COMPLAINT (ECF NO. 5)

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Before the Court is Terence Ruben’s amended complaint. (ECF No. 5). The Court hereby orders
Ruben to submit a second amended complaint to address issues as discussed below.

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Ruben filed his initial complaint on April 7, 2017, alleging that the Las Vegas and Texas City

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governments violated his constitutional rights in 2013 and 2014. (ECF No. 1-1). On May 10, 2017, the

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Court found that Ruben’s claims were barred by the applicable two-year statute of limitations. (ECF No.

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4-6). The Court ordered the Ruben had until June 16, 2017 to file an amended complaint “alleging facts
that show why this Court should equitably toll the 2-year statute of limitations.” (Id. at 7).

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On June 2, 2016, Ruben filed an amended complaint. (ECF No. 5). Though Ruben lists his claims
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from 2013 and 2014 (Id. at 2-3), he does not address equitable tolling. Instead, Ruben alleges that he was
incarcerated for false charges in September 2015 and January 2016, within the statute of limitations period.

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(Id. at 3). Based on the documents attached to the amended complaint, it appears that both these

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incarcerations took place in Texas City (Id. at 5-7), but the amended complaint is not clear on this issue.

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Ruben’s amended complaint does not contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The amended complaint lists many time-

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barred claims with no discussion of equitable tolling.1 In addition, the amended complaint does not
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contain sufficient factual allegations regarding where the incarcerations took place. As previously noted,

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it appears that both incarcerations took place in Texas City. If this is true, the second amended complaint

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will have to include allegations to justify maintaining Ruben’s case against the city of Las Vegas.2 These

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deficiencies may be cured by allowing Ruben to file a second amended complaint. This will also provide

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an opportunity for Ruben to follow the formatting requirements in Federal Rule of Civil Procedure 10,

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such as including a caption. The Court cautions Ruben about ensuring that the second amended complaint

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contain all necessary factual allegations so the Court may evaluate it without referencing any previous

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versions of the complaint.

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ACCORDINGLY, and for good cause,

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IT IS ORDERED that Ruben has until December 15, 2017 to file a second amended complaint
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addressing the issues discussed above. Failure to timely file a second amended complaint that addresses
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the deficiencies noted in this Order may result in a recommendation for dismissal with prejudice.
IT IS FURTHER ORDERED that if a second amended complaint is later filed, the Clerk of the

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Court is directed NOT to issue summons on the second amended complaint. The Court will issue a

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screening order on the second amended complaint and address the issuance of Summons at that time, if

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applicable. See 28 U.S.C. § 1915(e)(2).

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Ruben’s interactions with the Las Vegas and Texas City police departments prior to 2015 may be relevant background to his
false incarceration claims, but these pre-2015 interactions are not bases for independent claims.
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Should the city of Las Vegas be dismissed form this action, the Court would have serious concerns about its jurisdiction to
enter any judgment against the government of Texas City.

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NOTICE

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Pursuant to Local Rule IB 3-1, any objection to this Order must be in writing and filed with the

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Clerk of the Court within 14 days. The Supreme Court has held that the courts of appeal may determine

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that an appeal has been waived due to the failure to file objections within the specified time. See Thomas

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v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the

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specified time and (2) failure to properly address and brief the objectionable issues waives the right to

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appeal the District Court’s order and/or appeal factual issues from the order of the District Court. Martinez

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v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th

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Cir. 1983).
Pursuant to LSR 2-2, the Plaintiff must immediately file written notification with the court of any
change of address. The notification must include proof of service upon each opposing party or the party’s

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attorney. Failure to comply with this Rule may result in dismissal of the action. (See LSR 2-2).
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IT IS SO ORDERED.
DATED this 7th day of November, 2017.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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