Welch v. Dzurenda ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 KENTRELL D. WELCH, Case No. 2:19-cv-01241-RFB-BNW 4 Plaintiff ORDER 5 v. 6 JAMES DZURENDA, et al., 7 Defendants 8 9 I. DISCUSSION 10 Plaintiff, who is an inmate in the custody of the Nevada Department of Corrections 11 (“NDOC”), has filed a civil rights complaint, a first amended complaint, and two 12 “declarations.”1 (ECF Nos. 1-1, 2-1, 5, 6.) It is not clear what the purpose of the 13 declarations is, but it appears that Plaintiff wants the Court to consider the allegations in 14 his declarations together with his amended complaint. 15 The Court will not piecemeal Plaintiff’s complaint together from multiple filings. 16 Plaintiff’s operative complaint must contain all claims, defendants, and factual allegations 17 that Plaintiff wishes to pursue in this lawsuit. As such, the Court grants Plaintiff leave to 18 file a fully complete second amended complaint within 30 days. If Plaintiff does not file a 19 fully complete amended complaint, the court will screen his first amended complaint (ECF 20 No. 2-1) and will not consider any allegations in Plaintiff’s additional filings. 21 If Plaintiff chooses to file a second amended complaint, he is advised that a second 22 amended complaint supersedes (replaces) the original complaint, and any previously filed 23 amended complaints, and, thus, the second amended complaint must be complete in 24 itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 25 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is 26 27 1 The Court notes that it previously issued this order on July 14, 2021. (ECF No. 11.) However, the Court’s order was returned as undeliverable. (ECF No. 12.) The Court 28 believes that the delivery issues have been resolved and is now resending this order to Plaintiff. 1| irrelevant; an amended pleading supersedes the original’); see also Lacey v. Maricopa 2| Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, 3| a plaintiff is not required to reallege such claims in a subsequent amended complaint to 4| preserve them for appeal). Plaintiff's second amended complaint must contain all claims, 5 | defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. 6 | Moreover, Plaintiff must file the second amended complaint on this Court’s approved 7 | prisoner civil rights form, and it must be entitled “Second Amended Complaint.” 8| Il. CONCLUSION 9 For the foregoing reasons, IT IS ORDERED that Plaintiff is granted leave to file a single complete second amended complaint. If Plaintiff chooses to file a second amended complaint, Plaintiff will file the second amended complaint within 30 days from the date of entry of this order. 13 IT IS FURTHER ORDERED that the Clerk of the Court will send to Plaintiff the 14| approved form for filing a § 1983 complaint, instructions for the same, and a copy of his 15 | initial complaint, the first amended complaint, and his declarations (ECF Nos. 1-1, 2-1, 5, 6). If Plaintiff chooses to file a second amended complaint, he must use the approved 17 | form and he will write the words “Second Amended” above the words “Civil Rights 18 | Complaint’ in the caption. 19 IT IS FURTHER ORDERED that, if Plaintiff does not timely file a second amended 20 | complaint, the Court will screen the first amended complaint (ECF No. 2-1) only and will 21} not consider any allegations in Plaintiff's declarations. 22 DATED: August 20, 2021. 28 Gx Lea wre fatn 24 United States Magistrate Judge 25 26 27 28 -2-