North v. Kohen

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 DAVID NORTH, Case No. 2:19-cv-01428-RFB-VCF

4 Plaintiff ORDER

5 v.

6 BRIAN KOHEN et al.,

7 Defendants

8 9 I. DISCUSSION 10 Plaintiff, who is an inmate in the custody of the Nevada Southern Detention Center 11 (“NSDC”), has filed two applications to proceed in forma pauperis (ECF Nos. 1, 5), two 12 motions to amend (ECF Nos. 3, 9), and a motion for status check (ECF No. 8). 13 With respect to the applications to proceed in forma pauperis, the Court denies the 14 first application (ECF No. 1) as moot but grants the second application (ECF No. 5). The 15 Court denies the motion for status check (ECF No. 8) as moot. 16 The Court denies the motions to amend (ECF Nos. 3, 9) without prejudice. The 17 Court notes that the motions to amend seek to add additional claims to Plaintiff’s original 18 complaint without Plaintiff filing a fully, complete amended complaint. The Court will not 19 piecemeal Plaintiff’s complaint together. Plaintiff’s operative complaint must contain all 20 claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. 21 As such, the Court denies the motions to amend (ECF Nos. 3, 9) without prejudice and 22 grants Plaintiff leave to file a fully complete second amended complaint.1 23 Plaintiff is granted leave to file a second amended complaint. If Plaintiff chooses 24 to file a second amended complaint he is advised that a second amended complaint 25 supersedes (replaces) the original and amended complaints and, thus, the second

26 1 The Court notes that Plaintiff has two ongoing lawsuits pursuing different claims 27 and different factual allegations. See 2:19-cv-01427-JAD-NJK and 2:19-cv-01428-RFB- VCF. Plaintiff should be mindful of the lawsuit he is attempting to file an amended 28 complaint in. The allegations in the second motion to amend (ECF No. 9) seem more in line with the lawsuit filed in 2:19-cv-01427-JAD-NJK. 1 amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard 2 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party 3 was named in the original complaint is irrelevant; an amended pleading supersedes the 4 original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding 5 that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims 6 in a subsequent amended complaint to preserve them for appeal). Plaintiff’s second 7 amended complaint must contain all claims, defendants, and factual allegations that 8 Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff should file the second 9 amended complaint on this Court’s approved prisoner civil rights form and it must be 10 entitled “Second Amended Complaint.” 11 II. CONCLUSION 12 For the foregoing reasons, it is ordered that the first application to proceed in forma 13 pauperis (ECF No. 1) is denied as moot. 14 It is further ordered that Plaintiff’s second application to proceed in forma pauperis 15 (ECF No. 5) without having to prepay the full filing fee is granted. Plaintiff shall not be 16 required to pay an initial installment fee. Nevertheless, the full filing fee shall still be due, 17 pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. The 18 movant herein is permitted to maintain this action to conclusion without the necessity of 19 prepayment of fees or costs or the giving of security therefor. This order granting in forma 20 pauperis status shall not extend to the issuance and/or service of subpoenas at 21 government expense. 22 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 23 Litigation Reform Act, the Nevada Southern Detention Center shall pay to the Clerk of the 24 United States District Court, District of Nevada, 20% of the preceding month's deposits to 25 the account of David North, #54048048 (in months that the account exceeds $10.00) 26 until the full $350 filing fee has been paid for this action. The Clerk of the Court shall send 27 a copy of this order to the Finance Division of the Clerk’s Office. The Clerk shall send a 28 copy of this order to the attention of Chief of Inmate Services for the Nevada Southern 1 Detention Center, 2190 East Mesquite Avenue, Pahrump, NV 89060. 2 It is further ordered that, even if this action is dismissed, or is otherwise 3 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prison Litigation Reform Act. 5 It is further ordered that the motions to amend (ECF Nos. 3, 9) are denied without 6 | prejudice. 7 It is further ordered that the motion for status check (ECF No. 8) is denied as moot. 8 It is further ordered that, if Plaintiff chooses to file a second amended complaint, 9| Plaintiff will file the second amended complaint within 30 days from the date of entry of this order. 11 It is further ordered that the Clerk of the Court will send to Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and copies of his original complaint (ECF No. 1-1) and motions to amend (ECF Nos. 3, 9). If Plaintiff chooses to file a second amended complaint, he should use the approved form and he will write the 15 | words “Second Amended” above the words “Civil Rights Complaint” in the caption. 16 It is further ordered that, if Plaintiff does not timely file a second amended complaint, the Court will screen the original complaint (ECF No. 1-1) only and strike all other motions to amend from the docket. 19 20 DATED THIS ‘4th day of July 2020. 21 Load acto. 22 23 24 25 26 27 28

-3-