Strohmeyer v. Belanger et al

Filing 19

ORDER giving Plaintiff 30 days to file second amended complaint curing deficiencies of amended complaint; directing Clerk to send Plaintiff 1983 form, instructions, copy of ECF No. 9 Amended Complaint, and copy of ECF No. 15 USCA Memorand um (mailed 10/18/2016). If Plaintiff chooses not to file second amended complaint, action shall proceed on the following (see order for details). Signed by Judge Robert C. Jones on 10/18/2016. (Copies have been distributed pursuant to the NEF - KR) Modified on 10/18/2016 to clarify (KR).

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

12

)
)
Plaintiff,
)
)
v.
)
)
K. BELANGER et al.,
)
)
Defendants.
)
)
___________________________________ )

13

I.

7
8
9
10
11

JEREMY JOSEPH STROHMEYER,

3:14-cv-00661-RCJ-WGC
ORDER

DISCUSSION

14

On May 7, 2015, this Court issued a screening order dismissing the case in its entirety,

15

with prejudice, without leave to amend. (ECF No. 8 at 12). Plaintiff appealed. (ECF No. 11).

16

On August 5, 2016, the Ninth Circuit Court of Appeals issued an order affirming in part,

17

reversing in part, and vacating in part this Court’s screening order. (ECF No. 15 at 5). The

18

Ninth Circuit remanded the case for further proceedings. (Id.).

19

disposition, the Ninth Circuit held:
In sum, we affirm the dismissal of [Plaintiff’s] due process claim for
unlawful deprivation of property, due process claim for the 2012 disciplinary
hearing and federal right to counsel claim, reverse the dismissal of [Plaintiff’s]
deliberate indifference to safety claim, due process claim for the 2013
disciplinary hearing, and civil conspiracy claim, reverse the denial of leave to
amend [Plaintiff’s] retaliation and equal protection claims, and vacate the
dismissal of his state law claims, and remand for further proceedings.

20
21
22
23
24

In the memorandum

(Id.).

25

In light of the Ninth Circuit’s memorandum disposition, the Court now grants Plaintiff

26

leave to amend. Plaintiff is granted leave to file a second amended complaint to cure the

27

deficiencies of the amended complaint. If Plaintiff chooses to file a second amended

28

complaint he is advised that a second amended complaint supersedes (replaces) the original
and amended complaints and, thus, the second amended complaint must be complete in

1

itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

2

1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an

3

amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896,

4

928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required

5

to reallege such claims in a subsequent amended complaint to preserve them for appeal).

6

Plaintiff’s second amended complaint must contain all claims, defendants, and factual

7

allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file the

8

second amended complaint on this Court’s approved prisoner civil rights form and it must be

9

entitled “Second Amended Complaint.”

10

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

11

deficiencies, as outlined in the Ninth Circuit’s memorandum disposition, Plaintiff shall file the

12

second amended complaint within 30 days from the date of entry of this order. If Plaintiff

13

chooses not to file a second amended complaint curing the stated deficiencies, this action

14

shall proceed on the deliberate indifference to safety claim against Jenkins, Vallaster, Whiting,

15

Ward, Olivas, and Kenner; due process claim for 2013 disciplinary hearing against Carpenter;

16

civil conspiracy claim against Jenkins, Vallaster, Whiting, Ward, Olivas, and Kenner; and state

17

law claims (via supplemental jurisdiction) only.

18

II.

CONCLUSION

19

For the foregoing reasons, IT IS ORDERED that if Plaintiff chooses to file a second

20

amended complaint curing the deficiencies of his amended complaint, as outlined in the Ninth

21

Circuit’s memorandum disposition, Plaintiff shall file the second amended complaint within

22

30 days from the date of entry of this order.

23

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

24

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

25

complaint (ECF No. 9), and a copy of the Ninth Circuit’s memorandum disposition (ECF No.

26

15). If Plaintiff chooses to file a second amended complaint, he must use the approved form

27

and he shall write the words “Second Amended” above the words “Civil Rights Complaint” in

28

the caption.
2

1

IT IS FURTHER ORDERED that if Plaintiff chooses not to file a second amended

2

complaint curing the stated deficiencies of the amended complaint, this action shall proceed

3

on the deliberate indifference to safety claim against Jenkins, Vallaster, Whiting, Ward, Olivas,

4

and Kenner; due process claim for 2013 disciplinary hearing against Carpenter; civil

5

conspiracy claim against Jenkins, Vallaster, Whiting, Ward, Olivas, and Kenner; and state law

6

claims (via supplemental jurisdiction) only.

7
8

DATED: This 18th day of October, 2016.
DATED: This _____ day of September, 2016.

9
10

_________________________________
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3