United States District Court, D. Nevada
October 10, 2018, Plaintiff, who is a prisoner in the Nevada
Department of Corrections, filed a complaint pursuant to 42
U.S.C. § 1983, alleging that defendants violated various
rights under federal law. (ECF No. 1-1 at 1). Plaintiff's
case was placed in line for screening behind hundreds of
other prisoner civil rights cases that were filed before he
filed his case.
subsequently filed an amended complaint. (ECF No. 5).
Although Plaintiff called this document a “second
amended petition, ” it was a first amended complaint
and alleged violations of § 1983 and federal
constitutional rights. An amended complaint replaces a
previous complaint. See Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th
Cir. 1989). Therefore, the operative complaint became the
first amended complaint (ECF No. 5).
then filed a motion for leave to add a supplemental
attachment to the “2ndAmended
petition.” (ECF No. 6). With that motion, he filed not
only documents, but factual allegations and he asserted that
the “complaint” is a “tort action.”
(ECF No. 6-1 at 2, 9-14.) Although Plaintiff refers to a
“complaint, ” it appears that he actually means a
cause of action and that he is attempting to amend the first
amended complaint (ECF No. 5) to add this cause of action,
which he asserts is a “tort action.” (ECF No. 6-1
at 11.) In the supplement, Plaintiff alleges facts that
allegedly took place before he filed the original complaint
in this action. (ECF No. 6-1 at 12-14).
Court denies the motion for leave to add a supplemental
attachment to the “2nd Amended
petition.” (ECF No. 6). Plaintiff's allegations in
the supplement are only one cause of action and are not a
complete complaint. Under Local Rule 15-1(a), a proposed
amended complaint must be complete in and of itself without
reference to the complaint that the plaintiff is seeking to
amend. Nevada Local Rule of Practice 15-1(a). Therefore,
Plaintiff may not file his causes of action in piecemeal
fashion. Accordingly, the Court will deny the motion for
leave to add the supplemental attachment, but will give
Plaintiff leave to file a second amended complaint. If
Plaintiff chooses to file a second amended complaint, he must
include all the defendants, allegations, and causes of action
he wishes to pursue in this case. If Plaintiff does not file
a complete second amended complaint within thirty days of
this order, the Court will screen only the first amended
complaint (ECF No. 5). If Plaintiff does amend the first
amended complaint to include a tort action, he is advised to
allege what kind of tort action he is bringing and what law
he is alleging that defendants violated. Without such
allegations, the Court will not be able to determine whether
it has jurisdiction over such a claim or if Plaintiff has
stated a colorable claim.
of whether Plaintiff chooses to file a second amended
complaint, the Court will neither expedite nor delay the
screening in this case. Plaintiff has repeatedly sought to have
this Court expedite the screening of his case. (ECF No. 10,
12). The Court denies all such requests. When Plaintiff filed
his original complaint, the Court sent Plaintiff a letter
advising him, among other things, that the Court would screen
his complaint before any service of the complaint and that
this process would take many months. (ECF No. 2 at 1). Plaintiff
has not identified any reasons why it should screen
Plaintiff's complaint before it screens the many civil
rights complaints that other prisoners filed before Plaintiff
initiated this action. The Court finds no basis for delaying
the screening of other prisoners' complaints in order to
expedite the screening of Plaintiff's complaint.
foregoing reasons, IT IS ORDERED that the motion for leave to
add a supplemental attachment to the “2nd
Amended petition” (ECF No. 6) is denied.
FURTHER ORDERED that Plaintiff is granted leave to file a
second amended complaint within thirty days. If Plaintiff
chooses to file a second amended complaint, Plaintiff shall
file the second amended complaint within 30 days from the
date of entry of this order.
FURTHER ORDERED that the Clerk of the Court shall send to
Plaintiff the approved form for filing a § 1983
complaint, instructions for the same, and a copy of his first
amended complaint (ECF No. 5) and his supplemental attachment
(ECF No. 6-1). If Plaintiff chooses to file a second amended
complaint, he should use the approved form and he must write
the words “Second Amended” above the words
“Civil Rights Complaint” in the caption.
FURTHER ORDERED that, if Plaintiff does not file a second
amended complaint within 30 days of this order, the Court
will screen the first amended complaint (ECF No. 5).
FURTHER ORDERED that, to the extent Plaintiff requests that
the Court expedite the screening of his case and screen his
case before screening civil rights cases that were initiated
before his, those requests (ECF No. 10, 12) are denied.
FURTHER ORDERED that the Clerk of the Court shall re-send
Plaintiff a copy ...