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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 12 ) ) Plaintiff, ) ) v. ) ) C. ROWLEY et al., ) ) Defendants. ) ) ___________________________________ ) 13 I. 7 8 9 10 11 RICKIE L. HILL, ORDER DISCUSSION On June 24, 2015, this Court issued a screening order dismissing the complaint in its 14 15 3:15-cv-00038-RCJ-VPC entirety. (ECF No. 4 at 1, 8). On July 20, 2015, Plaintiff appealed. (ECF No. 7). 16 On August 26, 2016, the Ninth Circuit Court of Appeals issued a memorandum 17 disposition which affirmed in part, reversed in part, and remanded. (ECF No. 13 at 3). The 18 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. 19 20 21 22 (Id.). 23 In light of the Ninth Circuit’s memorandum disposition, Plaintiff is granted leave to file 24 an amended complaint to cure the deficiencies of the complaint. If Plaintiff chooses to file an 25 amended complaint he is advised that an amended complaint supersedes (replaces) the 26 original complaint and, thus, the amended complaint must be complete in itself. See Hal 27 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding 28 that “[t]he fact that a party was named in the original complaint is irrelevant; an amended 1 pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th 2 Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to 3 reallege such claims in a subsequent amended complaint to preserve them for appeal). 4 Plaintiff’s amended complaint must contain all claims, defendants, and factual allegations that 5 Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint 6 on this Court’s approved prisoner civil rights form and it must be entitled “First Amended 7 Complaint.” 8 The Court notes that if Plaintiff chooses to file an amended complaint curing the 9 deficiencies as outlined in the Ninth Circuit’s memorandum disposition, Plaintiff shall file the 10 amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses not 11 to file an amended complaint curing the stated deficiencies, this action shall only proceed on 12 the sexual harassment and equal protection claims against Rowley for unwanted touching of 13 Plaintiff’s person. (See ECF No. 13 at 2). 14 II. CONCLUSION 15 For the foregoing reasons, IT IS ORDERED that if Plaintiff chooses to file an amended 16 complaint curing the deficiencies of his complaint, as outlined in the Ninth Circuit’s 17 memorandum disposition, Plaintiff shall file the amended complaint within 30 days from the 18 date of entry of this order. 19 IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the 20 approved form for filing a § 1983 complaint, instructions for the same, a copy of his original 21 complaint (ECF No. 5), and a copy of the Ninth Circuit’s memorandum disposition (ECF No. 22 13). If Plaintiff chooses to file an amended complaint, he must use the approved form and he 23 shall write the words “First Amended” above the words “Civil Rights Complaint” in the caption. 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 IT IS FURTHER ORDERED that if Plaintiff chooses not to file an amended complaint 2 curing the stated deficiencies of the complaint, this action shall only proceed on the sexual 3 harassment and equal protection claims against Rowley for unwanted touching of Plaintiff’s 4 person. 5 6 DATED: This 18th day of October, 2016. DATED: This _____ day of September, 2016. 7 8 _________________________________ United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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