Hogg v. Cox et al

Filing 19

ORDER giving Plaintiff 30 days to file amended complaint curing deficiencies of complaint; directing Clerk to send Plaintiff 1983 form, instructions, copy of ECF No. 5 Complaint, copy of ECF No. 4 Screening Order, and copy of ECF No. 15 USCA Memorandum (attached hereto for transmittal to P). If Plaintiff chooses not to file amended complaint, action will be dismissed with prejudice for failure to state a claim. Signed by Judge Robert C. Jones on 10/18/2016. (Attachments: # 1 1983 Form, # 2 1983 Form Instructions, # 3 Complaint, # 4 Screening Order, # 5 USCA Memorandum) (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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COX et al.,
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Defendants.
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___________________________________ )

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I.

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ROOSEVELT MAURICE HOGG,

3:15-cv-00158-RCJ-WGC
ORDER

DISCUSSION

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On July 6, 2015, this Court issued a screening order dismissing the federal claim, with

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prejudice, as amendment would be futile, and dismissing the state law claims for lack of

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supplemental jurisdiction. (ECF No. 4 at 5). On July 22, 2015, Plaintiff appealed. (ECF No.

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8).

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On August 5, 2016, the Ninth Circuit Court of Appeals held that this Court had properly

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dismissed Plaintiff’s due process claim but had abused its discretion in dismissing the

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complaint “without a single opportunity to amend.” (ECF No. 15 at 2). The Ninth Circuit

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reversed the judgment and remanded back to this Court to give Plaintiff an opportunity to file

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an amended complaint. (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
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 Court’s screening order (ECF No. 4), 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, the Court shall dismiss this action,

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with prejudice, for failure to state a claim.

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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 Court’s screening order

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(ECF No. 4), Plaintiff shall file the amended complaint within 30 days from the date of entry

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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), a copy of the screening order (ECF No. 4), and a copy of the Ninth

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Circuit’s memorandum disposition (ECF No. 15). If Plaintiff chooses to file an amended

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complaint, he must use the approved form and he shall write the words “First Amended” above

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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 the

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deficiencies outlined in the screening order, this action shall be dismissed, with prejudice, for

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failure to state a claim.

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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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