Duerson v. Sunrise Children's Foundation

Filing 3

ORDER that the Clerk file Complaint, but not issue summons. Plaintiff's Complaint is dismissed with leave to file an amendment. Amended Complaint deadline: 8/11/2017., Payment of filing fees or IFP due 8/11/2017. Signed by Magistrate Judge Peggy A. Leen on 7/14/2017. (Copies have been distributed pursuant to the NEF, cc: Complaint and IFP to P - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ADRIAN DUERSON,

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v.

Case No. 2:17-cv-01792-JCM-PAL
Plaintiff,
ORDER

SUNRISE CHILDREN’S FOUNDATION,
Defendant.

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This matter is before the court on Plaintiff Adrian Duerson’s failure to pay the standard

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filing fee or submit an application to proceed in forma pauperis (“IFP”) in this case. This

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proceeding is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of

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the Local Rules of Practice.

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Plaintiff is proceeding in this action pro se, that is representing himself, and has submitted

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a complaint as part of the initiating documents (ECF No. 1), but Plaintiff did not submit an IFP

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application or remit the $400.00 filing fee. In order to proceed in this action without paying the

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standard filing fee, 28 U.S.C. § 1915 and LSR 1-1 provides that a litigant must submit the court’s

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form IFP application.

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Additionally, the complaint does not include any factual allegations, such as the date of the

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incident(s) at issue, the nature of the incident(s), the parties involved, or the facts demonstrating

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that Plaintiff was discriminated against. Without written factual allegations stating the reasons

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why Plaintiff alleges that defendant’s practices were discriminatory, the court cannot evaluate

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whether the complaint states a claim against the defendant. The court therefore will dismiss

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Plaintiff’s complaint with leave to file an amended complaint.

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The court appreciates that it is difficult for pro se parties to litigate their claims; thus,
plaintiff is advised to familiarize himself with the Federal Rules of Civil Procedure and the
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Local Rules of Practice.1 He may also be able to participate in the Federal Court Ask-A-Lawyer

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program coordinated by the Legal Aid Center of Southern Nevada.2

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complaints against the alleged discriminatory practices of Sunrise Children’s Foundation. Plaintiff

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does not identify the type of discriminatory practices about which he is complaining. He may be

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attempting to assert an employment discrimination claim. The Clerk of the Court will be instructed

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to mail Plaintiff a blank form complaint for employment discrimination claims.3 Although a form

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complaint cannot cover every type of employment discrimination case, it does highlight certain

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types of information that is useful to the court for screening purposes and may aid plaintiffs in

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stating a colorable claim. If this is not an employment discrimination claim plaintiff must state

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It appears plaintiff has

the nature of his claim.

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If Plaintiff chooses to file an amended complaint, it must be filed by August 11, 2017.

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The amended complaint must contain a short and plain statement of: (1) the grounds for the

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court’s jurisdiction; (2) any claim he has showing an entitlement to relief; and (3) a demand for

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relief. See Fed. R. Civ. P. 8(a). The amended complaint should set forth the claims in short and

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plain terms, simply, concisely, and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 506,

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514 (2002). This means that plaintiffs should avoid legal jargon and conclusions. Instead,

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plaintiff should summarize the information he believes to be relevant in his own words for each

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claim asserted in the amended complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Rule 8

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demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause

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of action”).
Plaintiff is advised to support each of his claims with factual allegations because all

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complaints “must contain sufficient allegations of underlying facts to give fair notice and to enable

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the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

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2011). When claims are alleged against multiple defendants, the complaint should clearly indicate

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The Federal Rules of Civil Procedure may be accessed on the United States Courts website at:
uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure.
The Local
Rules of Practice may be accessed and downloaded from this court’s website at: nvd.uscourts.gov.
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Information about the Federal Court Ask-A-Lawyer program is available on the Legal Aid Center of
Southern Nevada’s website at lacsn.org/what-we-do/ask-a-lawyer or by calling 702-386-1070.
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The Complaint for Employment Discrimination, Pro Se Form 7, is also available for download on the
United States Courts’ website at uscourts.gov/forms/pro-se-forms/complaint-employment-discrimination.

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which claims apply to which defendant. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1995).

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Plaintiff should specifically identify each defendant to the best of his ability, clarify what

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constitutional right he believes each defendant has violated and support each claim with factual

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allegations about each defendant’s actions. Where multiple claims are alleged, the complaint

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should identify which factual allegations give rise to each particular claim. McHenry, 84 F.3d at

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1178. Plaintiff must state “enough facts to raise a reasonable expectation that discovery will reveal

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evidence” of the allegations charged. Cafasso, United States ex rel. v. General Dynamics C4

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Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 556 (2007)).

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Plaintiff is also informed that the court cannot refer to a prior pleading (i.e., the original

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complaint) in order to make the amended complaint complete. Local Rule 15-1 requires that an

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amended complaint be complete in itself without reference to any prior pleading. See LR 15-1(a).

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This is because, as a general rule, an amended complaint supersedes the original complaint.

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Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Once a plaintiff files

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an amended complaint, the original pleading no longer serves any function in the case. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Accordingly,

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IT IS ORDERED:

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1. The Clerk of Court shall FILE Plaintiff Adrian Duerson’s Complaint (ECF No. 1-1),

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but SHALL NOT issue summons.

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2. The Clerk of the Court is instructed to mail Plaintiff one blank form complaint for

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employment discrimination and an application to proceed in forma pauperis with

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instructions.

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3. Plaintiff shall have until August 11, 2017, to: (a) submit an Application to Proceed in

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Forma Pauperis, accompanied by a signed and executed financial affidavit disclosing

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the applicant’s income, assets, expenses and liabilities, or (b) pay the $400 filing fee,

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accompanied by a copy of this Order.
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4. Plaintiff’s failure to comply with this Order by: (a) submitting an Application to

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Proceed In Forma Pauperis, or (b) paying the $400 filing fee, before the deadline will

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result in a recommendation to the district judge that this case be dismissed.

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5. Plaintiff’s Complaint is DISMISSED with leave to file an amended complaint by
August 11, 2017.

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6. The amended complaint must be a complete document in and of itself and will

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supersede the original complaint in its entirety. Any allegations, parties, or requests

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for relief from prior papers that are not carried forward in the amended complaint will

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no longer be before the court.

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7. Plaintiff shall clearly title the amended complaint as such by placing the words “FIRST

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AMENDED” immediately above “Complaint for Employment Discrimination” on the

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first page and write 2:17-cv-01792-JCM-PAL in the space for “Case No.”

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8. Plaintiff’s failure to comply with this Order by submitting an amended complaint

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before the August 11, 2017 deadline will result in a recommendation to the district

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judge that this case be dismissed.

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Dated this 14th day of July, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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