Fernandez v. Jackson et al

Filing 20

ORDER Application to Proceed in Forma Pauperis ECF No. 1 is reinstated and deferred. If Plaintiff chooses to file an amended complaint curing deficiencies, the amended complaint is due by October 16, 2016. Clerk to send Plaintiff the appro ved form for filing a § 1983 complaint, instructions, original Complaint ECF No. 4 , original Screening Order ECF No. 3 and Ninth Circuit Order ECF. No. 16 . If an amended complaint is not filed, Plaintiff must file a written notice informing the Court of his intent to proceed with this case. If Plaintiff fails to file an amended complaint and/or notify the Court of his intent by October 16, 2016, this case will be dismissed with prejudice. See Order for further details. Signed by Judge Robert C. Jones on 09/16/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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BRET JACKSON et al.,
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Defendants.
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___________________________________ )

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I.

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KEVIN FERNANDEZ,

3:13-cv-00670-RCJ-WGC
ORDER

DISCUSSION

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On April 3, 2014, this Court denied Plaintiff’s application to proceed in forma pauperis

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and dismissed his complaint, with prejudice, as amendment would be futile, for failure to state

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a claim. (ECF No. 3 at 6-7). The Clerk of Court entered judgment the same day. (ECF No.

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5). Plaintiff appealed. (ECF No. 6). On August 4, 2016, the Ninth Circuit Court of Appeals

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affirmed in part, reversed in part, vacated in part, and remanded. (ECF No. 16 at 4).

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In light of the Ninth Circuit’s order, the Court now finds that Count I, alleging retaliation,

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shall proceed against Defendants Jackson and Marikami but grants Plaintiff leave to amend

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Count I in order to give Plaintiff an opportunity to allege sufficient facts to demonstrate

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retaliation against the other defendants. (Id. at 2). The Court now finds that Count II, alleging

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due process violations, shall proceed against Defendants Serrano and Jackson to the extent

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that Plaintiff is alleging that he was subjected to mental health treatment against his will. (Id.

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at 3). The Court now finds that Plaintiff’s state law claims may proceed under supplemental

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jurisdiction. (Id. at 4).

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Plaintiff is granted leave to file an amended complaint to cure the deficiencies of his

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retaliation claim. If Plaintiff chooses to file an amended complaint he is advised that an
amended complaint supersedes (replaces) the original complaint and, thus, the amended

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complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co.,

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Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the

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original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey

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v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with

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prejudice, a plaintiff is not required to reallege such claims in a subsequent amended

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complaint to preserve them for appeal). Plaintiff’s amended complaint must contain all claims,

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defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover,

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Plaintiff must file the amended complaint on this Court’s approved prisoner civil rights form and

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it must be entitled “First Amended Complaint.”

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The Court notes that if Plaintiff chooses to file an amended complaint curing the

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deficiencies, as outlined in this order and the Ninth Circuit’s order, Plaintiff shall file the

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amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses not

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to file an amended complaint curing the stated deficiencies, Plaintiff must notify the Court

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within 30 days from the date of this order that he chooses to proceed on Count I against

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Defendants Jackson and Marikami, Count II against Defendants Serrano and Jackson, and

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Counts III, IV, V, VI, and VII through supplemental jurisdiction. If Plaintiff does not either file

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an amended complaint or file a notice informing the Court of his intent to proceed with this

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case without filing an amended complaint, the Court shall dismiss this case with prejudice.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the application to proceed in forma

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pauperis (ECF No. 1) is reinstated. The Court now defers a decision on the application to

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proceed in forma pauperis (ECF No. 1).

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint curing

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the deficiencies of his complaint, as outlined in this order and the Ninth Circuit’s order, Plaintiff

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shall file the amended complaint within 30 days from the date of entry of this order.

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IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the

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approved form for filing a § 1983 complaint, instructions for the same, a copy of his original

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complaint (ECF No. 4), a copy of this Court’s original screening order (ECF No. 3), and a copy
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of the Ninth Circuit’s order (ECF No. 16). If Plaintiff chooses to file an amended complaint,

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he must use the approved form and he shall write the words “First Amended” above the words

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“Civil Rights Complaint” in the caption.

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IT IS FURTHER ORDERED that if Plaintiff chooses not to file an amended complaint,

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he must file a written notice informing the Court of his intent to proceed with this case without

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filing an amended complaint. If Plaintiff chooses to file such a notice, this case shall proceed

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on Count I against Defendants Jackson and Marikami, Count II against Defendants Serrano

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and Jackson, and Counts III, IV, V, VI, and VII through supplemental jurisdiction.

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IT IS FURTHER ORDERED that if Plaintiff fails to either file an amended complaint or

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notify the Court of his intent to proceed with this case within 30 days from the date of this

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order, the Court shall dismiss this case with prejudice.

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DATED: This _____ day of September, 2016.
16th

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_________________________________
United States District Judge

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