Burton v. Rohan

Opinion

2 DISTRICT OF NEVADA 2 3 3 DAYMEYAN BURTON, Case No.: 2:22-cv-01087-GMN-VCF 4 4 Plaintiff, 5 ORDER 5 v. 6 6 C/O ROHAN, et al., 7 7 Defendants.

8 8 9 I. DISCUSSION 9 10 On September 29, 2022, the Court issued a screening allowing one of Plaintiff’s 10 11 claims to proceed and dismissing other claims without prejudice and with leave to amend. 11 12 (ECF No. 7.) Plaintiff has filed a second amended complaint. (ECF No. 9.) But the 12 13 second amended complaint appears to be missing pages. The second amended 13 14 complaint does not include a signature page attesting that the complaint is filed under 14 15 penalty of perjury and stating Plaintiff’s requests for relief. (Id.) Furthermore, Count III 15 16 refers to Plaintiff’s allegations in Counts I and II, but the second amended complaint does 16 17 not include Count II. (Id.) It appears that, due to an accident, portions second amended 17 18 complaint were not filed. Accordingly, the Court will grant an extension for Plaintiff to file 18 19 a complete second amended complaint. 19 20 The Court reminds Plaintiff that a second amended complaint supersedes 20 21 (replaces) the original complaint, and any previously filed amended complaints, and, thus, 21 22 any second amended complaint must be complete in itself. See Hal Roach Studios, Inc. 22 23 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact 23 24 that a party was named in the original complaint is irrelevant; an amended pleading 24 25 supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 25 26 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to 26 27 reallege such claims in a subsequent amended complaint to preserve them for appeal). 27 28 If Plaintiff chooses to file a second amended complaint, it must contain all claims, 28 4| defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. 2| Moreover, Plaintiff should file the second amended complaint on this Court’s approved prisoner civil rights form, and it must be entitled “Second Amended Complaint.” 4 The Court grants Plaintiff an extension until January 13, 2023, to file any second 5| amended complaint. If Plaintiff does not file a second amended complaint by January 13, 6| 2023, this action will proceed only on Plaintiffs claim of deliberate indifference to unsafe 7| prison conditions against Defendant Rohan, as determined by the Court’s screening g| order. (ECF No. 7 at 9.) I. CONCLUSION 10 For the foregoing reasons, it is ordered that, if Plaintiff chooses to file a second 41) amended complaint curing the deficiencies of the first amended complaint, as outlined in 42| the court’s screening order, Plaintiff will file the second on or before January 13, 2023. 13 It is further ordered that the Clerk of the Court will send to Plaintiff the approved 44| form for filing a § 1983 complaint and instructions for the same, and a copy of the second 45| amended complaint (ECF No. 9). If Plaintiff chooses to file a second amended complaint, 46| he should use the approved form and he will write the words “Second Amended” above 47| the words “Civil Rights Complaint” in the caption. 18 It is further ordered that, if Plaintiff chooses not to file a second amended complaint, 49| this action will proceed only on Plaintiffs claim of deliberate indifference to unsafe prison 29| conditions against Defendant Rohan, as determined in the Court’s screening order. a" DATED THIS ah day of December 2022. 22

24 United States Magistrate Judge 25 26 27 28