Cardova, Sr. v. Washoe County Sheriff Department et al

Filing 3

ORDER denying without prejudice ECF No. 1 Motion/Application for Leave to Proceed in forma pauperis. Clerk directed to send instructions and approved form application to proceed in forma pauperis. Plaintiff shall either complete t he application to proceed in forma pauperis with complete financial attachments or pay the full $400 filing fee by 02/16/2017. Plaintiff shall either file a notice with the Court indicating which complaint he seeks to proceed on o r file a fully amended complaint which incorporates both complaints by 02/16/2017. If Plaintiff chooses to file an amended complaint, the amended complaint is due by 02/16/2017. Clerk directed to send instructions, form 1983 Complaint, a copy of his original complaint ECF No. 1 -1 and his civil complaint for personal injury ECF No. 1 -2; Clerk directed to retain the complaints, but shall not file at this time. Signed by Magistrate Judge William G. Cobb on 01/17/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 VINCENT CARDOVA, SR., Plaintiff, 8 v. 9 10 WASHOE COUNTY SHERIFF DEPARTMENT et al., 11 Defendants. 12 ) ) ) ) ) ) ) ) ) ) ) 3:17-cv-00020-MMD-WGC ORDER ___________________________________ 13 I. DISCUSSION 14 Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has 15 submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, a civil complaint for personal 16 injury, and has filed an application to proceed in forma pauperis. (ECF No. 1, 1-1, 1-2). 17 Plaintiff’s application to proceed in forma pauperis is incomplete. Pursuant to 28 U.S.C. 18 § 1915(a)(2) and Local Rule LSR 1-2, Plaintiff must complete an application to proceed in 19 forma pauperis and attach both an inmate account statement for the past six months and a 20 properly executed financial certificate. Plaintiff has not submitted a properly executed financial 21 certificate on this Court’s approved form or an inmate account statement. (See ECF No. 1). 22 As such, the in forma pauperis application is denied without prejudice. Plaintiff will be granted 23 an opportunity to cure the deficiencies of his application to proceed in forma pauperis, or in 24 the alternative, pay the full filing fee for this action. If Plaintiff chooses to file a new application 25 to proceed in forma pauperis, he must file a fully complete application to proceed in forma 26 pauperis. 27 The Court notes that Plaintiff has submitted two complaints in this case–a § 1983 civil 28 rights complaint and a civil complaint for personal injury. Plaintiff may only have one operative 1 complaint in each case. As such, within thirty (30) days from the date of this order, Plaintiff 2 shall either: (1) file a notice with the Court indicating which complaint he seeks to proceed on 3 and which complaint he seeks to withdraw; or (2) file a fully amended complaint which 4 incorporates both complaints into one complaint. If Plaintiff fails to indicate which complaint 5 he wishes to proceed on, the Court will presume that the § 1983 civil rights complaint is the 6 operative complaint and will strike the civil complaint for personal injury as moot. 7 If Plaintiff chooses to file an amended complaint he is advised that an amended 8 complaint supersedes (replaces) the original complaint and, thus, the amended complaint 9 must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 10 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original 11 complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. 12 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with 13 prejudice, a plaintiff is not required to reallege such claims in a subsequent amended 14 complaint to preserve them for appeal). Plaintiff’s amended complaint must contain all claims, 15 defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, 16 Plaintiff must file the amended complaint on this Court’s approved prisoner civil rights form and 17 it must be entitled “First Amended Complaint.” 18 II. 19 20 CONCLUSION For the foregoing reasons, IT IS ORDERED that Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is DENIED without prejudice to file a new application. 21 IT IS FURTHER ORDERED that the Clerk of the Court SHALL SEND Plaintiff the 22 approved form application to proceed in forma pauperis by a prisoner, as well as the document 23 entitled information and instructions for filing an in forma pauperis application. 24 IT IS FURTHER ORDERED that within thirty (30) days from the date of this order, 25 Plaintiff shall either: (1) file a fully complete application to proceed in forma pauperis, on the 26 correct form with complete financial attachments in compliance with 28 U.S.C. § 1915(a); or 27 (2) pay the full $400 fee for filing a civil action (which includes the $350 filing fee and the $50 28 administrative fee). 2 1 2 IT IS FURTHER ORDERED that if Plaintiff does not timely comply with this order, dismissal of this action may result. 3 IT IS FURTHER ORDERED that within thirty (30) days from the date of this order, 4 Plaintiff shall either: (1) file a notice with the Court indicating which complaint he seeks to 5 proceed on and which complaint he seeks to withdraw; or (2) file a fully amended complaint 6 which incorporates both complaints into one complaint. If Plaintiff fails to indicate which 7 complaint he wishes to proceed on, the Court will presume that the § 1983 complaint (ECF No. 8 1-1) is the operative complaint and will strike the civil complaint for personal injury (ECF No. 9 1-2) as moot. 10 IT IS FURTHER ORDERED that, if Plaintiff chooses to file an amended complaint, as 11 outlined in this order, Plaintiff shall file the amended complaint within thirty (30) days from the 12 date of entry of this order. 13 IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the 14 approved form for filing a § 1983 complaint, instructions for the same, and a copy of his 15 original complaint (ECF No. 1-1) and his civil complaint for personal injury (ECF No. 1-2). If 16 Plaintiff chooses to file an amended complaint, he must use the approved form and he shall 17 write the words “First Amended” above the words “Civil Rights Complaint” in the caption. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall retain the complaints (ECF No. 1-1, 1-2), but shall not file them at this time. 20 21 17th DATED: This _____ day of January, 2017. 22 23 _________________________________ United States Magistrate Judge 24 25 26 27 28 3

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