McDonald v. Dzurenda

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Kenneth G. McDonald, Case No.2:19-cv-01329-JAD-DJA 4 Plaintiff 5 v. Order Granting Leave to File 6 James Dzurenda, et al., Amended Complaint and Denying Motions 7 Defendants [ECF Nos. 2, 3, 7] 8 9 Pro se plaintiff Kenneth McDonaldbrings this civil-rights action to redress constitutional 10 violations that he claims he suffered as an inmate at Nevada’s High Desert State Prisonand the 11 Saguaro Correctional Center.1 Since filing his initial complaint, which remains unscreened, 12 McDonald has moved for apreliminary injunctionand a temporary restraining order; filed an 13 additional motion, captioned as one for “clarification,”askingthe court to address his pending 14 motions more expeditiously; and submitted three documents labeled “Notice to the Court.”2 15 Because the notices appear to be efforts to supplement the allegations in his complaint, I grant 16 McDonald leave tofile an amended complaint by April 10, 2020,that incorporates all the 17 allegations and claims that he wishes to assert. Because McDonald has not demonstrated that the 18 extraordinary remedy of injunctive relief is warranted, I deny his pending motions. 19 20 21 22 23 1 ECF No. 1-1. 2 ECF Nos. 2, 3, 6, 7, 8, 9. 1 I. Motion to Show Cause for a Preliminary Injunction and TRO [ECF Nos. 2, 3] 2 Simultaneously with his complaint, McDonald moved for atemporary restraining order 3 and preliminaryinjunction.3 In support ofthat relief, McDonald alleges that he has been sent to 4 a private prison in Arizona, which he considers to be a punishment.4 He explains that he is a 5 Wiccan, and the private prison in Arizona is not meeting his religious needs by allowing him to

6 practice his religion outdoors. He explains that the prisons within the Nevada Department of 7 Corrections allow greater religious freedom, and he asks that the court order he be transferred 8 back to a prison in Nevada.5 9 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never 10 awarded as of right.”6 “A plaintiff seeking a preliminary injunction must establish that he is 11 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 12 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 13 public interest.”7 Furthermore, under the Prison Litigation Reform Act (“PLRA”), preliminary 14 injunctive relief must be “narrowly drawn,” must “extend no further than necessary to correct the

15 harm,” and must be “the least intrusive means necessary to correct the harm.”8 16 I find that McDonald has failed to establish that the extraordinary remedy of injunctive 17 relief is warranted at this time. McDonald has not shownthat he is likely to succeed on the 18 19 3 ECF Nos. 2, 3. 20 4 Id at 2. 21 5 Id. at 4. 22 6 Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 (2008). 7 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 23 Winter, 555 U.S. at 20). 8 18 U.S.C. § 3626(a)(2). 1 merits of any of his claims or that an injunction is in the public interest at this time. So Ideny 2 his request for a preliminary injunction and atemporary restraining order. 3 II. Requestfor Clarification [ECF No. 7] 4 Impatient for a decision on his motion for injunctive relief, McDonaldfiled a “request for 5 clarification.” Init, he did not ask forthe court to clarify anything it had ordered or done. The

6 request is more of a hurry-up-and-decide-my-pending-motion request,designed to spur the court 7 into moving McDonald’s pending motions to the front of the very long line of pro se prisoner 8 motions that the court is in the process of evaluating. Because I have now denied those pending 9 motions, I deny McDonald’s request for clarification as moot. 10 III. Leave to Amend 11 McDonald has also filed three documents labeled “Notice to the Court.”9 It is not clear 12 what the purpose of these documents is, but they appear to contain supplemental allegations that 13 are not included in McDonald’s complaint. This method of supplementing allegations in a 14 complaint is not authorized; the court will not piecemeal McDonald’s complaint together with

15 allegations asserted in separate documents. McDonald’s operative complaint must contain all 16 claims, defendants, and factual allegations that McDonald wishes to pursue in this lawsuit. So, I 17 grant McDonald leave to file a fully complete first amended complaint. McDonaldis not 18 required to file an amended complaint, but if he does not file an amended complaintby April 19 10, 2020, I will screen his original complaint(ECF No. 1-1)only and disregard any 20 allegations in McDonald’s notices to the court. 21 If McDonald chooses to file an amended complaint, he is advised that an amended 22 complaint supersedes (replaces) the original complaint, so the amended complaint must be 23 9 ECF Nos. 6, 8, 9. 1 complete in itself.10 He must file the amended complaint on this court’s approved prisoner-civil- 2 rights form, and it must be entitled “First Amended Complaint.” McDonald must follow the 3 instructions on the form. He need not andshould not allege very many facts in the “nature of the 4 case” section of the form. Rather, in each count, he should allege facts sufficient to show what 5 each defendant did to violate his civil rights.

6 IV. Conclusion 7 IT IS THEREFORE ORDERED that the motions for a preliminary injunction and 8 temporary restraining order[ECF Nos. 2, 3]are DENIED. 9 IT IS FURTHER ORDERED that the motion for clarification [ECF No. 7] is DENIED 10 as moot. 11 IT IS FURTHER ORDERED that plaintiff has until April 10, 2020, to file aFirst 12 Amended Complaintthat contains all of the claims, defendants, and factual allegations that 13 he wishes to assert in this action. If he does not file an amended complaint by this deadline, 14 the court will screen his original complaint and disregard all supplemental allegations

15 contained in the notices to the court. 16 IT IS FURTHER ORDERED that the Clerk of the Court is directed toSENDto Plaintiff 17 the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his 18 complaint and notices to the court (ECF Nos. 1-1, 6,8,9). If Plaintiff chooses to file a first 19 20 21 10 See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 22 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 23 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). 1}| amended complaint, he must use the approved form and write the words “First Amended” above 2\| the words “Civil Rights Complaint” in the caption. 3 Dated: March 9, 2020 _ U.S. District J □ Tennitér A Dorsey 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23