McCleary v. Yates

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA ANGELO VERNON McCLEARY, ) ) Plaintiff, ) ) v. ) No. CIV 20-032-RAW-SPS ) WARDEN YATES, et al., ) ) Defendants. ) OPINION AND ORDER On March 5, 2020, the Court directed Plaintiff to file an amended complaint in accordance with the Opinion and Order entered on that date (Dkt. 8). Plaintiff has filed an amended complaint, adding nine defendants but failing to comply with the Court’s instructions for the amended complaint (Dkt. 9). The amended complaint lists a total of ten defendants in the caption: Warden Yates, Health Services Chief Ray Larimer, Nurse Mrs. Lysinger, Barbara Blair, Trust Fund Officer Angela Jackson, Records Officer Mrs. Bailey, C.O. Ms. Lindsay, C.O. Ms. Gonzales, C.N. Case Manager Jeremy Ferguson, and CoreCivic, Inc. (Dkt. 9 at 1). The body of the complaint, however, includes only five defendants (Dkt. 9 at 3-4).1 The amended complaint also fails to set forth how each defendant was personally involved in the alleged violation of Plaintiff’s constitutional rights, as instructed by the Court’s Order (Dkt. 8 at 4). Specifically, Claim 1 fails to state which defendant(s) personally participated in the alleged embezzlement, and Claim 2 does not state which defendant(s) were involved in the alleged financial extortion (Dkt. 9 at 5). Plaintiff, therefore, is directed to file a second amended complaint within twenty-one 1 The body of the complaint form only has space for five defendants, however, the instructions for the form state that additional sheets of paper may be attached as necessary (Dkt. 9 at 3). (21) days. The second 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 the original complaint or exhibits. Id. A second amended complaint completely replaces the first amended complaint and renders the first amended 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). ACCORDINGLY, Plaintiff is directed to file within twenty-one (21) days a second amended complaint on the Court’s form as directed in this Order. The Court Clerk is directed to send Plaintiff a copy of the form for filing a second 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 6th day of August, 2020.