Hill v. Rowley et al

Filing 15

ORDER giving Plaintiff 30 days to file an amended complaint curing deficiencies of the complaint; directing Clerk to send Plaintiff 1983 form, instructions, copy of ECF No. 5 Complaint, and a copy of ECF No. 13 USCA Memorandum (mailed 10/ 18/2016). If Plaintiff chooses not to file amended complaint, action shall proceed only on the sexual harassment and equal protection claims against Rowley for unwanted touching of Plaintiff's person. Signed by Judge Robert C. Jones on 10/18/2016. (Copies have been distributed pursuant to the NEF - KR)

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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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C. ROWLEY et al.,
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Defendants.
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___________________________________ )

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I.

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RICKIE L. HILL,

ORDER

DISCUSSION
On June 24, 2015, this Court issued a screening order dismissing the complaint in its

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3:15-cv-00038-RCJ-VPC

entirety. (ECF No. 4 at 1, 8). On July 20, 2015, Plaintiff appealed. (ECF No. 7).

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On August 26, 2016, the Ninth Circuit Court of Appeals issued a memorandum

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disposition which affirmed in part, reversed in part, and remanded. (ECF No. 13 at 3). The

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Ninth Circuit held:
In sum, we affirm the dismissal of [Plaintiff’s] failure-to-protect and equal
protection claims based on Rowley’s comments to [Plaintiff], reverse the
dismissal of [Plaintiff’s] sexual harassment and equal protection claims based
on Rowley’s touching of [Plaintiff], reverse the denial of leave to amend
[Plaintiff’s] failure-to-protect and equal protection claims against Spiers, and
remand for further proceedings.

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(Id.).
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In light of the Ninth Circuit’s memorandum disposition, Plaintiff is granted leave to file
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an amended complaint to cure the deficiencies of the complaint. If Plaintiff chooses to file an
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amended complaint he is advised that an amended complaint supersedes (replaces) the
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original complaint and, thus, the amended complaint must be complete in itself. See Hal
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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding
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that “[t]he fact that a party was named in the original complaint is irrelevant; an amended

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pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th

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

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

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

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Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint

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on this Court’s approved prisoner civil rights form and it must be entitled “First Amended

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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 the Ninth Circuit’s memorandum disposition, 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, this action shall only proceed on

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the sexual harassment and equal protection claims against Rowley for unwanted touching of

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Plaintiff’s person. (See ECF No. 13 at 2).

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that if Plaintiff chooses to file an amended

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complaint curing the deficiencies of his complaint, as outlined in the Ninth Circuit’s

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memorandum disposition, Plaintiff shall file the amended complaint within 30 days from the

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

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13). If Plaintiff chooses to file an amended complaint, he must use the approved form and he

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shall write the words “First Amended” above the words “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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curing the stated deficiencies of the complaint, this action shall only proceed on the sexual

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harassment and equal protection claims against Rowley for unwanted touching of Plaintiff’s

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person.

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

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_________________________________
United States District Judge

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