Hendrix v. Barfield ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JAMAL DAMON HENDRIX, Case No. 3:18-cv-00393-RCJ-WGC 4 Plaintiff, ORDER 5 v. 6 JOSHUA BARFIELD et al., 7 Defendants. 8 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 9 1983 by a state prisoner. Plaintiff has submitted an application to proceed in forma 10 pauperis. (ECF No. 1). Based on the financial information provided, the Court finds that 11 Plaintiff is unable to prepay the full filing fee in this matter. 12 The Court entered a screening order on October 16, 2019. (ECF No. 4). The 13 screening order imposed a 90-day stay, and the Court entered a subsequent order in 14 which the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 15 4, 10). The Office of the Attorney General has filed a status report indicating that 16 settlement has not been reached and informing the Court of its intent to proceed with this 17 action. (ECF No. 14). 18 Following the entry of the Court’s screening order, Plaintiff filed a motion for leave 19 to file an amended complaint within 30 days. (ECF No. 6.) The Office of the Attorney 20 General has filed a response indicating that it does not oppose Plaintiff’s motion to file an 21 amended complaint. (ECF No. 12.) Accordingly, the Court grants Plaintiff’s motion for 22 leave to file an amended complaint within 30 days. 23 If Plaintiff chooses to file an amended complaint, he is advised that an amended 24 complaint supersedes (replaces) the original complaint and, thus, the amended complaint 25 must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 26 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the 27 original complaint is irrelevant; an amended pleading supersedes the original”); see also 28 1 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims 2 dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent 3 amended complaint to preserve them for appeal). Plaintiff’s amended complaint must 4 contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in 5 this lawsuit. Moreover, Plaintiff should file the amended complaint on this Court’s 6 approved prisoner civil rights form, and it must be entitled “First Amended Complaint.” 7 For the foregoing reasons, IT IS ORDERED that: 8 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is 9 GRANTED. Plaintiff shall not be required to pay an initial installment of the filing fee. In 10 the event that this action is dismissed, the full filing fee must still be paid pursuant to 28 11 U.S.C. § 1915(b)(2). 12 2. The movant herein is permitted to maintain this action to conclusion without 13 the necessity of prepayment of any additional fees or costs or the giving of security 14 therefor. This order granting leave to proceed in forma pauperis shall not extend to the 15 issuance and/or service of subpoenas at government expense. 16 3. Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections 17 shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the 18 preceding month’s deposits to Plaintiff’s account (Jamal Damon Hendrix, #1083418), in 19 the months that the account exceeds $10.00, until the full $350.00 filing fee has been paid 20 for this action. The Clerk of the Court shall SEND a copy of this order to the Finance 21 Division of the Clerk’s Office. The Clerk of the Court shall also SEND a copy of this order 22 to the attention of the Chief of Inmate Services for the Nevada Department of Corrections, 23 P.O. Box 7011, Carson City, NV 89702. 24 4. The Clerk of the Court shall electronically SERVE a copy of this order and 25 a copy of Plaintiff’s complaint (ECF No. 5) on the Office of the Attorney General of the 26 State of Nevada by adding the Attorney General of the State of Nevada to the docket 27 sheet. This does not indicate acceptance of service. 28 1 5. Plaintiff’s motion for leave to file an amended complaint (ECF No. 6) is 2 granted. If Plaintiff chooses to file an amended complaint, Plaintiff will file the amended 3 complaint within thirty (30) days from the date of entry of this order. 4 6. Service must be perfected within ninety (90) days from the date of this order 5 pursuant to Fed. R. Civ. P. 4(m). 6 7. Subject to the findings of the screening order (ECF No. 4), within twenty- 7 one (21) days of the date of entry of this order, the Attorney General’s Office shall file a 8 notice advising the Court and Plaintiff of: (a) the names of the defendants for whom it 9 accepts service; (b) the names of the defendants for whom it does not accept service, 10 and (c) the names of the defendants for whom it is filing the last-known-address 11 information under seal. As to any of the named defendants for whom the Attorney 12 General’s Office cannot accept service, the Office shall file, under seal, but shall not serve 13 the inmate Plaintiff the last known address(es) of those defendant(s) for whom it has such 14 information. If the last known address of the defendant(s) is a post office box, the Attorney 15 General's Office shall attempt to obtain and provide the last known physical address(es). 16 8. If service cannot be accepted for any of the named defendant(s), Plaintiff 17 shall file a motion identifying the unserved defendant(s), requesting issuance of a 18 summons, and specifying a full name and address for the defendant(s). For the 19 defendant(s) as to which the Attorney General has not provided last-known-address 20 information, Plaintiff shall provide the full name and address for the defendant(s). 21 9. If the Attorney General accepts service of process for any named 22 defendant(s), such defendant(s) shall file and serve an answer or other response to the 23 complaint (ECF No. 5) within sixty (60) days from the date of this order. 24 10. Plaintiff shall serve upon defendant(s) or, if an appearance has been 25 entered by counsel, upon their attorney(s), a copy of every pleading, motion or other 26 document submitted for consideration by the Court. Plaintiff shall include with the original 27 document submitted for filing a certificate stating the date that a true and correct copy of 28 the document was mailed or electronically filed to the defendants or counsel for the 1 defendants. If counsel has entered a notice of appearance, Plaintiff shall direct service 2 to the individual attorney named in the notice of appearance, at the physical or electronic 3 address stated therein. The Court may disregard any document received by a district 4 judge or magistrate judge which has not been filed with the Clerk, and any document 5 received by a district judge, magistrate judge, or the Clerk which fails to include a 6 certificate showing proper service. 7 11. This case is no longer stayed. 8 DATED THIS _1_3_th day of December 2019. 9 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28