Roppollo v. Yates et al

Filing 47

OPINION AND ORDER by Judge Ronald A. White: Plaintiff's motion to file a third amended complaint 42 is GRANTED. Plaintiff is directed to file within thirty (30) days a third amended complaint on the Court's form as directed in this Order.(acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PAUL ROPPOLO,
Plaintiff,
v.
JAMES YATES, et al.,
Defendants.

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No. CIV 19-127-RAW-SPS

OPINION AND ORDER
Plaintiff is a pro se state prisoner in the custody of the Oklahoma Department of
Corrections who is incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma.
He filed a second amended civil rights complaint pursuant to 42 U.S.C. § 1983, seeking relief
for alleged constitutional violations at Davis Correctional Facility in Holdenville, Oklahoma
(Dkt. 24), and he now is asking for leave to file a third amended complaint (Dkt. 42). The
Court hereby GRANTS Plaintiff’s request and directs him to file a third amended civil rights
complaint on the Court’s form, as set forth below.
Within thirty (30) days of the entry of this Order, Plaintiff must file a third amended
complaint on this Court’s form. The third amended complaint must set forth the full name
of each person he is suing under 42 U.S.C. § 1983. See Sutton v. Utah State Sch. for the Deaf
& Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) (holding that “a cause of action under § 1983
requires a deprivation of a civil right by a ‘person’ acting under color of state law”). Further,
the names in the caption of the amended complaint must be identical to those contained in
the body of the third amended complaint, pursuant to Fed. R. Civ. P. 10(a). Plaintiff is
responsible for providing sufficient information for service of process.

See Lee v.

Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (plaintiff proceeding in forma pauperis and
pro se had responsibility to provide correct names and proper addresses for service of

process).
The third amended complaint must include a short and plain statement of when and
how each named defendant violated Plaintiff’s constitutional rights and showing he is
entitled to relief from each named defendant. See Fed. R. Civ. P. 8(a). Plaintiff also shall
identify a specific constitutional basis for each claim. See id. He is admonished that simply
alleging that a defendant is an employee or supervisor of a state agency is inadequate to state
a claim. Plaintiff must go further and state how the named defendant’s personal participation
violated his constitutional rights. The “denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged by the plaintiff, does not establish
personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009) (citations omitted). The Court only will consider claims “based upon the violation of
a plaintiff’s personal rights, and not the rights of someone else.” Archuleta v. McShan, 897
F.2d 495, 497 (10th Cir. 1990).
The third amended complaint must include all claims and supporting material to be
considered by the Court. See Local Civil Rule 9.2(c). It must be complete in itself, including
exhibits, and may not reference or attempt to incorporate material from Plaintiff’s previouslyfiled complaint or exhibits. Id. An amended complaint supersedes the original complaint
and renders the original complaint of no legal effect. See Miller v. Glanz, 948 F.2d 1562,
1565 (10th Cir. 1991); Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990). See
also Local Civil Rule 9.2(c). Pursuant to Local Civil Rule 5.2(a), the third amended
complaint must be clearly legible, and only one side of the paper may be used.
ACCORDINGLY, Plaintiff’s motion to file a third amended complaint (Dkt. 42) is
GRANTED. Plaintiff is directed to file within thirty (30) days a third amended complaint
on the Court’s form as directed in this Order. The Court Clerk is directed to send Plaintiff
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a copy of the form for filing a third amended civil rights complaint in this Court. Failure to
comply with this Order will result in dismissal of this action without further notice.
IT IS SO ORDERED this 24th day of March 2020.

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