Hertel 276681 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Frank Karl Hertel, No. CV-21-08044-PCT-JJT (ESW) 10 Plaintiff, ORDER 11 v. 12 David Shinn, et al., 13 Defendants. 14 15 16 The Court has reviewed Plaintiff’s “Motion to Amend the Complaint” (Doc. 39). 17 Plaintiff seeks to add three new counts. Attached to Plaintiff’s Motion are the factual 18 allegations underlying each of the proposed new counts. Plaintiff, however, has not lodged 19 a complete First Amended Complaint that contains the existing counts.1 20 Local Rule of Civil Procedure (“LRCiv”) 15.1 requires an amended pleading to 21 indicate in what respect it differs from the original pleading “by bracketing or striking 22 through the text that was deleted and underlining the text that was added.” A district court’s 23 local rules are not petty requirements, but have “the force of law.” Hollingsworth v. Perry, 24 558 U.S. 183, 191 (2010) (citation omitted). The Ninth Circuit has made clear that a pro 25 1 In its Order screening the original Complaint, the Court ordered Defendant Shinn, in his official capacity only, to answer (i) the Religious Land Use and Institutionalized 26 Persons Act (“RLUIPA”), Free Exercise Clause, and Establishment Clause claims in Count One; (ii) the Equal Protection claim in Count Two; (iii) the Eighth Amendment claim in 27 Count Three; and (iv) the access-to-the-courts claim in Count Four. (Doc. 8 at 18-19). The Court required Defendant Montiel, in his official capacity only, to answer (i) the RLUIPA 28 and Free Exercise Clause claims in Count One; (ii) the Equal Protection claim in Count Two; and (iii) the Eighth Amendment claim in Count Three. (Id. at 19). 1 se litigant must “abide by the rules of the court in which he litigates.” Bias v. Moynihan, 2 508 F.3d 1212, 1223 (9th Cir. 2007). The District Court of Arizona routinely denies parties 3 the opportunity to amend a complaint for failure to comply with LRCiv 15.1. See, e.g., 4 Bivins v. Ryan, No. CV–12–1097–PHX–ROS (LOA), 2013 WL 321847, at *4 (D. Ariz. 5 Jan. 28, 2013); Huminski v. Heretia, No. CV11-0896-PHX-DGC, 2011 WL 2910536, at 6 *1 (D. Ariz. July 18, 2011); Miles v. King, No. CV-13-370-PHX-SRB (LOA), 2013 WL 7 5526997 (D. Ariz. Oct. 7, 2013). 8 Moreover, the First Amended Complaint will supersede the original Complaint. See 9 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard 10 Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). That is, after amendment, the Court 11 will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262 (“after 12 amendment the original pleading no longer performs any function and is treated thereafter 13 as non-existent”) (internal quotation marks and citation omitted). Any cause of action that 14 was raised in the original Complaint and that was voluntarily dismissed or was dismissed 15 without prejudice is waived if it is not alleged in the First Amended Complaint. See Lacey 16 v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012). 17 Because Plaintiff has not lodged a complete First Amended Complaint that complies 18 with LRCiv 15.1, the Court will deny Plaintiff’s “Motion to Amend the Complaint” (Doc. 19 39). 20 Accordingly, 21 IT IS ORDERED denying without prejudice Plaintiff’s “Motion to Amend the 22 Complaint” (Doc. 39). 23 IT IS FURTHER ORDERED directing the Clerk of Court to mail Plaintiff a blank 24 copy of the “Civil Rights Complaint by a Prisoner” form. 25 IT IS FURTHER ORDERED setting November 17, 2021 as the deadline for 26 Plaintiff to file a renewed Motion to Amend the Complaint and lodge a First Amended 27 Complaint that complies with this Order and the Federal and Local Rules of Civil 28 Procedure. 1 IT IS FURTHER ORDERED denying Defendant Shinn’s “Request for Issuance 2|| of Screening Order and to Stay Proceedings” (Doc. 45). 3 Dated this 2nd day of November, 2021. . Cay) Heth 5 Honorable Eileen S. Willett 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-