Houseman v. Papke et al

Filing 7

ORDER denying ECF Nos. 3 , 5 Motions to Supplement and Join Claims to Complaint; giving Plaintiff 30 days to file amended complaint; directing Clerk to send Plaintiff 1983 form, instructions, copy of complaint, and copies of motions to supplement and join claims (mailed 8/7/2017); denying as moot ECF No. 1 IFP application; directing Clerk to send Plaintiff non-prisoner IFP form (mailed 8/7/2017), giving Plaintiff 30 days to file fully complete IFP application or pay full $400 filing fee. Signed by Magistrate Judge William G. Cobb on 8/7/2017. (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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PAPKE et al.,
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Defendants.
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___________________________________ )

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I.

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ROY HOUSEMAN,

3:17-cv-00031-MMD-WGC
ORDER

DISCUSSION

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Plaintiff, who was a prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”) when he initiated this case, has filed two motions to supplement his complaint.

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(ECF No. 3, 5). The Court will not piecemeal Plaintiff’s complaint together. Plaintiff’s operative

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complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to

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pursue in this lawsuit. As such, the Court denies the motions to supplement and join claims

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to the complaint (ECF No. 3, 5) and grants Plaintiff leave to file a fully complete first amended

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complaint.

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If Plaintiff chooses to file a first amended complaint he is advised that a first amended

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complaint supersedes (replaces) the original complaint and, thus, the first 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 first amended complaint must contain all
claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit.

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Moreover, Plaintiff must file the first amended complaint on this Court’s approved prisoner civil

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rights form and it must be entitled “First Amended Complaint.”

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Additionally, the Court denies the application to proceed in forma pauperis for prisoners

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(ECF No. 1) as moot because Plaintiff is no longer incarcerated. The Court now directs

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Plaintiff to file an application to proceed in forma pauperis by a non-prisoner within thirty (30)

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days from the date of this order or pay the full filing fee of $400.

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II.

For the foregoing reasons, IT IS ORDERED that the motions to supplement and join

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CONCLUSION

claims to complaint (ECF No. 3, 5) are denied.

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IT IS FURTHER ORDERED that, if Plaintiff chooses to file a first amended complaint,

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Plaintiff shall file the first amended complaint within 30 days from the date of entry of this

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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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complaint and motions to supplement and join claims to the complaint (ECF No. 1-1, 3, 5).

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If Plaintiff chooses to file a first 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 does not timely file a first amended

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complaint, the Court will screen the original complaint (ECF No. 1-1) only and strike all other

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supplements (ECF No. 3, 5) from the docket.

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IT IS FURTHER ORDERED that Plaintiff’s application to proceed in forma pauperis for
prisoners (ECF No. 1) is DENIED as moot.

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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 non-prisoner, as well as the

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document 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 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 comply with this order, the
Court shall dismiss this case without prejudice.
7th
DATED: This _____ day of August, 2017.

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_________________________________
United States Magistrate Judge

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