Cardova, Sr. v. Washoe County Sheriff Department et al
Filing
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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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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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VINCENT CARDOVA, SR.,
Plaintiff,
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v.
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WASHOE COUNTY SHERIFF
DEPARTMENT et al.,
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Defendants.
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3:17-cv-00020-MMD-WGC
ORDER
___________________________________
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I.
DISCUSSION
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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has
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submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, a civil complaint for personal
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injury, and has filed an application to proceed in forma pauperis. (ECF No. 1, 1-1, 1-2).
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Plaintiff’s application to proceed in forma pauperis is incomplete. Pursuant to 28 U.S.C.
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§ 1915(a)(2) and Local Rule LSR 1-2, Plaintiff must complete an application to proceed in
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forma pauperis and attach both an inmate account statement for the past six months and a
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properly executed financial certificate. Plaintiff has not submitted a properly executed financial
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certificate on this Court’s approved form or an inmate account statement. (See ECF No. 1).
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As such, the in forma pauperis application is denied without prejudice. Plaintiff will be granted
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an opportunity to cure the deficiencies of his application to proceed in forma pauperis, or in
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the alternative, pay the full filing fee for this action. If Plaintiff chooses to file a new application
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to proceed in forma pauperis, he must file a fully complete application to proceed in forma
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pauperis.
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The Court notes that Plaintiff has submitted two complaints in this case–a § 1983 civil
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rights complaint and a civil complaint for personal injury. Plaintiff may only have one operative
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complaint in each case. As such, within thirty (30) days from the date of this order, Plaintiff
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shall either: (1) file a notice with the Court indicating which complaint he seeks to proceed on
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and which complaint he seeks to withdraw; or (2) file a fully amended complaint which
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incorporates both complaints into one complaint. If Plaintiff fails to indicate which complaint
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he wishes to proceed on, the Court will presume that the § 1983 civil rights complaint is the
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operative complaint and will strike the civil complaint for personal injury as moot.
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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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II.
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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.
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IT IS FURTHER ORDERED that the Clerk of the Court SHALL SEND Plaintiff the
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approved form application to proceed in forma pauperis by a prisoner, as well as the document
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entitled information and instructions for filing an in forma pauperis 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, on the
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correct form with complete financial attachments in compliance with 28 U.S.C. § 1915(a); or
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(2) pay the full $400 fee for filing a civil action (which includes the $350 filing fee and the $50
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administrative fee).
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IT IS FURTHER ORDERED that if Plaintiff does not timely comply with this order,
dismissal of this action may result.
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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 notice with the Court indicating which complaint he seeks to
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proceed on and which complaint he seeks to withdraw; or (2) file a fully amended complaint
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which incorporates both complaints into one complaint. If Plaintiff fails to indicate which
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complaint he wishes to proceed on, the Court will presume that the § 1983 complaint (ECF No.
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1-1) is the operative complaint and will strike the civil complaint for personal injury (ECF No.
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1-2) as moot.
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IT IS FURTHER ORDERED that, if Plaintiff chooses to file an amended complaint, as
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outlined in this order, Plaintiff shall file the amended complaint within thirty (30) days from the
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date of 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, and a copy of his
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original complaint (ECF No. 1-1) and his civil complaint for personal injury (ECF No. 1-2). If
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Plaintiff chooses to file an amended complaint, he must use the approved form 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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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.
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17th
DATED: This _____ day of January, 2017.
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_________________________________
United States Magistrate Judge
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