Brown v. Giether

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

4 TRACEY L BROWN, et al. Case No. 2:21-cv-01182-RFB-DJA

5 Plaintiffs, ORDER

v.

6

ELY STATE PRISON, et al.,

7

Defendants.

8

9 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. §

10 1983 by two state prisoners. One of the Plaintiffs, Tracey Brown, has filed a motion

11 requesting permission to file an amended complaint. (ECF No. 10.) There is no proposed

12 amended complaint attached to the motion. Pursuant to Nevada Local Rule of Civil

13 Practice 15-1, “the moving party must attach the proposed amended pleading to a motion

14 seeking leave of the court to file an amended pleading.” Nev. Loc. R. 15-1. As such, the

15 Court denies the motion without prejudice.

16 Furthermore, as the Court previously explained, under Rule 11 of the Federal

17 Rules of Civil Procedure pro se litigants must each sign any pleading filed on their behalf,

18 including the complaint. (ECF No. 3 at 2-3.) The Court reiterates that each Plaintiff must

19 sign any pleading filed on his behalf, including any amended complaint.

20 Plaintiffs must file any motion for leave to file an amended complaint by February

21 28, 2022. Unless both Plaintiffs sign the proposed amended complaint, the Court will

22 screen the current complaint only. The Court will not accept any amended complaint

23 signed by only one Plaintiff. Alternatively, if Plaintiff Tracey Brown wishes to pursue a

24 new complaint on his own, he may file a motion to be voluntarily dismissed from this case

25 and begin a new action individually.

26 If Plaintiffs choose to file a proposed amended complaint, they are advised that an

27 amended complaint supersedes (replaces) the original complaint and, thus, the amended

complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner &

1 Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was

2 named in the original complaint is irrelevant; an amended pleading supersedes the

3 original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding

4 that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims

5 in a subsequent amended complaint to preserve them for appeal). Plaintiffs’ proposed

6 amended complaint must contain all claims, defendants, and factual allegations that

7 Plaintiffs wishes to pursue in this lawsuit. Moreover, Plaintiffs should file the proposed

8 amended complaint on this Court’s approved prisoner civil rights form, and it must be

9 entitled “First Amended Complaint.”

10 For the foregoing reasons, IT IS ORDERED that:

11 1. The motion requesting permission to file an amended complaint (ECF No.

12 10) is denied without prejudice. If Plaintiffs wish to file a renewed motion to file an

13 amended complaint, they must attach a proposed amended complaint to their motion.

14 2. If Plaintiffs choose to file a motion to file an amended complaint, they will do

15 so by February 28, 2022.

16 3. The Clerk of the Court will send Tracey Brown and Tony Brown each a copy

17 of this order, the approved form for filing a § 1983 complaint, instructions for the same,

18 and a copy of the original complaint (ECF No. 1-1). If Plaintiffs choose to file a motion to

19 file an amended complaint together with a proposed amended complaint, they should use

20 the approved form and they will write the words “First Amended” above the words “Civil

21 Rights Complaint” in the caption of the proposed amended complaint.

22 4. The Court notes that if Plaintiffs choose to file a motion to file an amended

23 complaint, they must file a single proposed amended complaint, which they have both

24 signed. The Court will not accept any proposed amended complaint signed by only one

25 of the Plaintiffs.

26 DATED this 28th day of December 2021.

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