United States District Court, D. Nevada
ORDER (NOTICE - ECF NO. 29)
A. LEEN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiff Jason Altheide's
Notice of Fifth Amended Complaint (ECF No. 29). This notice
is referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
Altheide is a pro se prisoner in the custody of the Nevada
Department of Corrections (“NDOC”) at Ely State
Prison. Altheide has received permission to proceed in
forma pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915 and LSR 1-1 of the Local Rules of Practice. This
case involves Altheide's allegations of civil rights
violations pursuant to 42 U.S.C. § 1983. The court
reviewed the Fourth Amended Complaint (ECF No. 12) and found
that it stated three plausible claims against defendants
Brian Williams, James Dzurenda, Alexis Lazano: (1)
disciplinary segregation due process, (2) administrative
segregation due process, and (3) cruel and unusual
punishment. Dec. 7, 2018 Screening Order (ECF No. 21).
court directed electronic service of the fourth amended
complaint on the Nevada Office of the Attorney General
(“Attorney General”). Id. On December
28, 2018, the Attorney General accepted service on behalf of
defendants Williams, Dzurenda, and Lazano (jointly, the
“NDOC defendants”). Acceptance of Service (ECF
No. 22). The NDOC defendants filed their Answer (ECF No. 23)
on February 5, 2019.
February 28, 2019, the court entered a Scheduling Order (ECF
No.27) directing that discovery shall be completed by May 29,
2019. Id. ¶ 3(a). The Scheduling Order also
provided deadlines to: (i) amend pleadings or join additional
parties, April 29, 2019; (ii) file discovery motions, June
13, 2019; and (iii) file dispositive motions, July 15, 2019.
See id. ¶¶ 1-2, 5-6. That same day the
court entered an Order (ECF No. 26) denying Altheide's
Motion to Substitute or Add Defendants (ECF No. 24). The
court informed him:
If Mr. Altheide wishes to substitute and add “John Doe
Caseworker and John Doe Caseworker Supervisor” for
defendant Lorenza, he may file a motion seeking leave of
the court to file a fifth amended complaint pursuant to
Rule 15, subject to the deadlines imposed in the scheduling
order. As explained, LR 15-1(a) requires that he attach a
proposed fifth amended complaint to his motion because, if
granted, the new pleading would supersede the fourth amended
complaint in its entirety. Any allegations, parties, or
requests for relief from the fourth amended complaint that
are not carried forward in the proposed fifth amended
complaint will no longer be before the court.
Id. (emphasis added).
March 11, 2019, Altheide filed a Notice (ECF No. 29)
attaching a proposed fifth amended complaint. He did not file
a motion requesting leave of the court to file a fifth
amended complaint as the court recently instructed.
may amend a pleading once “as a matter of course”
within 21 days after serving it or within 21 days after
service of a Rule 12 motion, whichever occurs earlier.
Fed.R.Civ.P. 15(a)(1). After the time for amendment as a
matter of course has expired, plaintiffs may amend a
complaint only by obtaining the court's permission or the
adverse party's written consent. Fed.R.Civ.P. 15(a)(2).
If a plaintiff files his or her amended complaint without
leave of court as required under Rule 15, it has no legal
effect. Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D.
642, 644 (D. Nev. 1995) (citing Fed.R.Civ.P. 15; Hoover
v. Blue Cross & Blue Shield, 855 F.2d 1538, 1544
(11th Cir. 1988) (amended complaint had no legal effect
because plaintiff improperly filed the amendment)).
case, the NDOC defendants were electronically served in
December 2018. The NDOC defendants filed their Answer in
February 2019. Thus, time had expired for Altheide to file an
amended complaint without obtaining the court's
permission, or defendants' written consent. Altheide did
not file a motion requesting leave of the court to amend the
complaint. The record does not indicate that defendants
consented to the amendment. Thus, the court will strike the
notice attaching Altheide's fifth amended complaint.
Altheide wishes to amend his complaint, he must seek
defendants' consent through their counsel, or file an
appropriate motion attaching a proposed amended complaint.
See LR 15-1(a). In addition, the rule requires that
an amended complaint be complete in itself without reference
to any prior pleading (i.e., the original complaint)
to make the amended complaint complete. Id. This is
because, as a general rule, an amended complaint replaces the
original complaint. Ramirez v. County of San
Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).
Therefore, in an amended complaint, as in an original
complaint, each claim and the involvement of each defendant
must be sufficiently alleged. Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011) (all complaints “must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively”); McHenry v. Renne, 84 F.3d 1172,
1178 (9th Cir. 1995) (a complaint should identify which
factual allegations give rise to each particular claim and
clearly indicate which claims apply to which defendant). When
considering a motion to amend an IFP complaint, the court is
required to screen the ...