Gonzalez v. Cox et al

Filing 19

ORDER - Clerk SHALL SEND P non-prisoner IFP application with instructions. ( Mailed 2/16/2017.) IFP application or $400 filing fee due by 3/18/2017. Amended complaint due by 3/18/2017. Clerk shall send P 1983 form, instructions, and copy of ECF No. 7 Complaint, and a copy of ECF No. 16 9th Ckt. memorandum. (Forms, inst., and docs mailed 2/16/2017.) Signed by Judge Robert C. Jones on 2/16/2017. (Copies have been distributed pursuant to the NEF - DRM)

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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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JAMES GREG COX et al.,
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Defendants.
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___________________________________ )

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I.

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HENRY FROMETA GONZALEZ,

3:15-cv-00115-RCJ-WGC
ORDER

DISCUSSION

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On June 25, 2015, the Court issued a screening order dismissing Plaintiff’s complaint

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in its entirety, with prejudice, for failure to state a claim. (ECF No. 6 at 7). Plaintiff appealed.

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(ECF No. 9). On December 21, 2016, the Ninth Circuit Court of Appeals affirmed in part,

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vacated in part, and remanded. (ECF No. 16 at 4). Specifically, the Ninth Circuit vacated the

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judgment in part and remanded with instructions “to provide [Plaintiff] with an opportunity to

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file an amended complaint as to the due process claims arising from his placement in

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segregation, and to address the merits of the due process claim arising from [Plaintiff’s]

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transfer to maximum security prison.” (Id. at 3). With respect to the transfer, the Ninth Circuit

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stated that it would not “address the merits of [Plaintiff’s] due process claim arising from his

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transfer to a maximum security prison, which the district court should address in the first

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instance.” (Id.)

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The Court now grants Plaintiff leave to amend his due process claim arising from his

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placement in segregation. The Court also addresses and now dismisses with prejudice

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Plaintiff’s due process claim arising from his transfer to a maximum security prison. See Olim

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v. Wakinekona, 461 U.S. 238, 245 (1983) (holding that prisoners have no liberty interest in
avoiding being transferred to another prison).

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

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complaint. If Plaintiff chooses to file an amended complaint he is advised that an amended

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complaint supersedes (replaces) the original complaint and, thus, the amended complaint

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must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896

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

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

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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 the Ninth Circuit’s memorandum disposition, Plaintiff shall file the

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amended complaint within thirty (30) days from the date of entry of this order. If Plaintiff

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chooses not to file an amended complaint curing the stated deficiencies, this action shall be

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dismissed with prejudice.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the Clerk of the Court SHALL SEND

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Plaintiff the approved form application to proceed in forma pauperis by a non-prisoner, as well

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as the document entitled information and instructions for filing an in forma pauperis

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application.

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IT IS FURTHER ORDERED that within thirty (30) days from the date of this order,

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Plaintiff shall either: (1) file a fully complete application to proceed in forma pauperis for non-

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prisoners; or (2) pay the full filing fee of $400.

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IT IS FURTHER ORDERED that, if Plaintiff fails to timely file an application to proceed
in forma pauperis by a non-prisoner, the Court shall dismiss this case with prejudice.
IT IS FURTHER ORDERED that, if Plaintiff chooses to file an amended complaint
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curing the deficiencies of his complaint, as outlined in the Ninth Circuit’s memorandum

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disposition, Plaintiff shall file the amended complaint within thirty (30) days from the date of

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

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16). 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 fails to file an amended complaint curing

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the deficiencies outlined in the Ninth Circuit’s memorandum disposition, this action shall be

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dismissed with prejudice.

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Dated: This 16th day of February, 2017.
DATED: This _____ day of January, 2017.

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_________________________________
United States District Judge

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