Jones v. Neven et al

Filing 1

Copy of ORDER from Case 3:11-cv-00047-LRH-WGC directing clerk to open new action. Filing fee or IFP Application due 3/24/2014 (blank IFP form mailed to plaintiff 2/21/13). Signed by Magistrate Judge William G. Cobb on 2/21/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JASON M. JONES,

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Plaintiff,
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vs.
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DOROTHY NASH HOLMES, et al.,
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Defendant.
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______________________________________)

3:11-cv-00047-LRH-WGC
ORDER
re Defendants’ Motion to Strike
Doc. # 74

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Before the court is Defendants’ “Motion to Strike Plaintiff’s [Proposed Amended] Complaint

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(Court Docket 67).” (Doc. # 74.)1 Plaintiff has opposed the motion. (Doc. # 74.) No reply was filed.

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On or about January 10, 2014, Plaintiff filed a document entitled “Civil Rights Complaint

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Pursuant to 42 U.S.C. § 1983.” (Doc. # 67.) No case number was inserted into this form document. The

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last page of the document included a handwritten note (Doc. # 67-1) to the “Clerk of Court” which at

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the bottom noted, in the same handwriting:

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3:11-cv-00047-LRH-WGC

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THANK YOU
and can I amend
my complaint w/ this one

(Id.; emphasis added)

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Defendants’ motion (Doc. # 74) reviews the intricate history of this case. Defendants reference

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the court’s March 20, 2013 scheduling order (Doc. # 32) which set a deadline for amending the pleadings

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or joining additional parties of 60 days from the date of the order (May 20, 2013). Defendants argued

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Refers to court’s docket number.

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Plaintiff’s “motion” was untimely.

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Any proposed amendment of a pleading is supposed to be effected by motion. Local Rule 15-1.

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Even liberally interpreting Plaintiff’s letter to the clerk as constituting a motion, and disregarding the

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timeliness issue for now, the Plaintiff’s request does not provide the court sufficient information to be

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able to evaluate the propriety of Plaintiff’s proposed amended complaint.

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More specifically, the action is currently pending against named defendants Romeo Aranas,

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Isidro Baca, Cheryl Burson, James “Greg” Cox, Roland Daniels, Jerry Howell, Paula Miller, Umair

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Moten, Dwight Neven, Francisco Sanchez, William Tate, Kay Weiss, Brian Williams, Sr., Connor Wolf,

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Cole Morrow, Howard Skolnik and David Mumford. The underlying action asserts a myriad of claims

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for retaliation, improper classification, denial of medical care, supervisory liability, etc. See, generally,

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Screening Order, Doc. # 19.

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The proposed 64 page amended complaint (Doc. # 67) identifies defendants Warden Neven,

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Nurse Greene, James ______ (nurse), Nicole ______ (nurse), Kelly ______ (nurse) and (in the caption)

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“H.D.S.P. Medical Staff, numerous Correctional Officers to be named & Clark County Detention

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Center, Univ. Medical Center, Defendants.” (Id., at 1-3.) None of these parties are defendants in the

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current proceeding. Generally speaking, the subject matter of Plaintiff’s filing (Doc. # 67) pertains to

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an alleged denial of medical care.

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Following the filing of Defendants’ motion to strike Plaintiff’s proposed amended complaint

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(Doc. #74), Plaintiff filed his opposition (Doc. # 75). In contradiction to his letter (Doc. # 67-1) which

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asked the clerk to “amend [his] complaint with this one” (i.e., Doc. # 67), Plaintiff now states his

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submission was supposedly not intended to effect an amendment of his existing complaint but to be a

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new action:

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Court Docket 67 was never intended for an Amended Complaint. It was
supposed to be filed as a new 42 USC 1983 Complaint.
(Doc. # 75 at 1.)

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At page 2 of his opposition, plaintiff states, again,

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I would like the following Document please and my 42 USC 1983 dated
Jan. 10th 2014 submitted by itself not as a amended complaint. It was
never intended for that. * * *

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(Id.)
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Accepting Plaintiff’s latest characterization of Doc. #67 as being a new complaint and not an

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attempt to amend Plaintiff’s existing complaint, good cause appears to STRIKE Doc. # 67 from the

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docket in this matter (although not necessarily for the reasons stated in Defendants’ motion (Doc. # 74),

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which was filed before Plaintiff clarified the characterization of his submission). However, in the event

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of an appeal, the record should retain this document to explain the confusion which Plaintiff has created.

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The Clerk of Court shall nonetheless re-file Plaintiff’s civil rights complaint (Doc. # 67) as a new

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action. However, because no filing fee was paid nor was an Application to Proceed in forma pauperis

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submitted, Plaintiff shall have thirty (30) days up to and including March 24, 2014, to submit a

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completed Application to Proceed in forma pauperis or pay the filing fees. The Clerk shall send to

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Plaintiff the appropriate form Application to Proceed in forma pauperis.
Plaintiff is advised that his failure to timely comply with this order will result in a
recommendation that the new action which is filed as a result of this order be dismissed.
Defendants’ motion (Doc. # 74) is DENIED as moot.

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IT IS SO ORDERED.

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DATED: February 21, 2014.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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