Harter v. McDaniel et al

Filing 8

ORDER - The Court grants Plaintiff an extension to file an amended complaint. First Amended Complaint due by 9/15/2016. Signed by Magistrate Judge William G. Cobb on 9/1/2016. (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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HAROLD E. HARTER,
Case No. 3:16-cv-00118-RCJ-WGC
Plaintiff,

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v.

Order

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E.K. McDANIEL, et al.,
Defendants.

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I.

DISCUSSION

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On July 18, 2016, the Court issued an order screening Plaintiff’s complaint (ECF No.

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3). The screening order dismissed Plaintiff’s complaint without prejudice and granted Plaintiff

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thirty days to file an amended complaint. (ECF No. 3 at 6:26-7:13). Plaintiff subsequently filed

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a motion to stay the screening order (ECF No. 5) that the Court construed as a motion for

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reconsideration. On August 30, 2016, the Court issued an order denying Plaintiff’s motion to

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stay the original screening order (ECF No. 7). In light of the Court’s denial of Plaintiff’s motion

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for stay, the Court now grants Plaintiff an extension to file his amended complaint, if any.

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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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Page 1 of 3

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complaint supersedes the original complaint and, thus, the amended complaint must be

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complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint

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

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Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a

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plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve

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them for appeal). Plaintiff’s amended complaint must contain all claims, defendants, and

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

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

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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 of the complaint, as outlined in the original screening order (ECF No. 3) and the

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Court’s order denying Plaintiff’s motion to stay (ECF No. 7), Plaintiff shall file the amended

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complaint within fourteen (14) 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 be dismissed

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without prejudice.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that in light of the Court’s order denying

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Plaintiff’s motion to stay the original screening order (ECF No. 7), the Court grants Plaintiff an

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extension to file an amended complaint.

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint curing

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the deficiencies of his complaint, as outlined in the original screening order (ECF No. 3) and

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the Court’s order denying Plaintiff’s motion to stay (ECF No. 7), Plaintiff shall file the amended

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complaint within fourteen (14) days from the date of entry of this order.

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, he

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must use the approved form sent to him with the Court’s original screening order and he shall

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write the words “First Amended” above the words “Civil Rights Complaint” in the caption.

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Page 2 of 3

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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 be dismissed without prejudice.

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DATED: September 1, 2016.

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_________________________________
United States Magistrate Judge

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