United States District Court, E.D. Oklahoma
BRYANT S. FLORIE, Plaintiff,
KAREN HEWES, Defendant.
OPINION AND ORDER
H. Payne United States District Judge.
August 2, 2016, the Court entered an Opinion and Order
dismissing from this action Defendant Seminole County
District Judge Butner and Defendant Seminole County District
Attorney Chris Ross for failure to state a claim upon which
relief may be granted (Dkt. 22 at 3-4). Judge Butner's
dismissal was based on his absolute judicial immunity, and
Chris Ross's dismissal was based on prosecutorial
immunity. Id. In addition, Plaintiff was advised
that he would not be allowed to add as defendants Seminole
County District Attorney Paul Smith, the Seminole County
District Attorney's Office, or the Seminole County Jail.
Id. at 4-5.
same order, Plaintiff's second motion to amend complaint
(Dkt. 20) was granted with respect to naming Karen Hewes as a
defendant. Id. at 4-5. Plaintiff was directed to
file a proper amended complaint in compliance with the
Court's following instructions:
The amended complaint must include all defendants, all
claims, and all supporting material to be considered by the
Court, and it may not reference or attempt to incorporate
material from the original complaint. See Local
Civil Rule 9.2(c). The amended complaint may not include
defendants or claims that are dismissed by this Order.
August 12, 2016, Plaintiff filed an amended complaint, naming
only Karen Hewes as a defendant (Dkt. 23). The Court
terminated the remaining defendants from Plaintiff's
original complaint, because those individuals were not
included in the amended complaint.
same date, Plaintiff filed four motions, including a
“Motion/Response to/Screening Dismissal
Standards” (Dkt. 24), which the Court construes as a
motion to reconsider the Opinion and Order entered on August
2, 2016 (Dkt. 22). The motion asks the Court to reinstate
Judge Butner and Paul Smith as defendants, among other
requests (Dkt. 24).
“Motion for Fast Track and/or Court Order to
Comply” (Dkt. 25) reiterated the request for relief in
his amended complaint. He also filed a “Motion to
Conduct Deposition with Discovery, ” requesting the
Court to facilitate depositions of certain dismissed
defendants and to postpone the dismissal of these individuals
(Dkt. 26). Plaintiff's fourth motion filed on August 12,
2016, was a “Motion to Avoid Dismissal for Failure to
Claim wich [sic] Relief May be Granted.” That motion
again asked for reinstatement of Defendant Judge Butner (Dkt.
27). Plaintiff subsequently filed other motions concerning
the dismissal of Judge Butner, various discovery issues, and
requests for relief.
the service of Defendant Karen Hewes (Dkt. 37), Plaintiff
filed a “Motion for Continuance to Motion to Reinstate
All Parties of Butner et al” (Dkt. 40), a “Motion
to Amend and Include Defendants” (Dkt. 50), and a
“Motion to Amend Defendant” (Dkt. 52), along with
additional motions to reinstate Judge Butner and to add other
individuals as defendants (Dkts. 50, 52). More recently, he
filed a “Motion to Amend or Resubmit Defendants”
(Dkt. 60). However, Petitioner never submitted a proposed
second amended complaint with any of his motions to amend, as
required by Local Civil Rule 9.2(c).
Plaintiff's motions liberally, see Haines v.
Kerner, 404 U.S. 519 (1972), the Court finds Plaintiff
is proceeding with this lawsuit under an incorrect assumption
that his amended complaint (Dkt. 23) supplemented his
original complaint (Dkt. 1). To the contrary, “[a]n
amended complaint supersedes the original complaint and
renders the original complaint of no legal effect.”
See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.
1991); Gilles v. United States, 906 F.2d 1386, 1389
(10th Cir. 1990). Consequently, once the amended complaint
was accepted for filing, the Court considered only the
defendant and claims identified in the amended complaint.
above reasons, the Court finds Plaintiff should be permitted
to file a second amended complaint in accordance with the
Plaintiff is directed to file a proper second amended
complaint on the Court's form within twenty-one (21)
days. The second amended complaint must include all
defendants, all claims, and all supporting material to be
considered by the Court, and it may not reference or attempt
to incorporate material from the original complaint.
See Local Civil Rule 9.2(c). The second amended
complaint also may not include defendants or claims that
previously were dismissed by this Court. Failure to comply
with this Order may result in dismissal of this action.
1. Plaintiffs motion to reconsider (Dkt. 24) is DENIED.
Plaintiff may not reinstate Seminole County District Judge
Burner or Seminole County District Attorney Chris ...