Palmer v. Filson

Filing 8

ORDER that the motion to amend complaint (ECF No. 7 ) is granted; if Plaintiff chooses to file an amended complaint it is due by 9/6/2018; Clerk shall send Plaintiff the approved form § 1983 complaint with instructions, and copies of his notice of intent to file, complaint supplement, and request to amend. (ECF Nos. 1 -1, 5 , 7 ) (mailed to P on 8/7/2018); if Plaintiff does not timely file a first amended complaint, the Court will dismiss this case, without prejudice, and direct Plaintiff to open a new case when he is able to file a fully complete complaint. Signed by Magistrate Judge William G. Cobb on 8/7/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARKIECE PALMER,

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Plaintiff,

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Case No. 3:18-cv-00302-MMD-WGC
ORDER

v.
TIMOTHY FILSON,

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Defendant.

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I.

DISCUSSION

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Plaintiff has filed a “notice of intent to file” a complaint, a complaint supplement,

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and a motion to amend complaint. (ECF Nos. 1-1, 5, 7). The Court notes that it will not

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piecemeal Plaintiff’s pleadings together to create Plaintiff’s complaint for him. Plaintiff’s

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operative complaint must contain all claims, defendants, and factual allegations that

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Plaintiff wishes to pursue in this lawsuit. As such, the Court grants Plaintiff leave to amend

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(ECF No. 7) in order to file a fully complete first amended complaint.

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

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amended complaint supersedes (replaces) the original complaint and, thus, the first

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amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard

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Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party

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was named in the original complaint is irrelevant; an amended pleading supersedes the

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original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding

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that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims

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in a subsequent amended complaint to preserve them for appeal).

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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 first amended

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complaint on this Court’s approved prisoner civil rights form and it must be entitled “First

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Amended Complaint.”

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II.

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Plaintiff’s first

CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion to amend complaint

(ECF No. 7) is granted.

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

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

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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 copies of his

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notice of intent to file, complaint supplement, and request to amend. (ECF Nos. 1-1, 5,

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7). If Plaintiff chooses to file a first amended complaint, he must use the approved form

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and he shall write the words “First Amended” above the words “Civil Rights Complaint” in

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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 dismiss this case, without prejudice, and direct Plaintiff to open

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a new case when he is able to file a fully complete complaint.

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DATED: August 7, 2018.

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UNITED STATES MAGISTRATE JUDGE

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