United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE.
a pro se state prisoner incarcerated at Oklahoma State
Penitentiary in McAlester, Oklahoma, initiated this civil
rights action on October 11, 2018, in Pittsburg County
District Court (Dkt. 2-1). The two defendants in the
state-court petition were Oklahoma State Penitentiary (OSP)
and the Oklahoma Department of Corrections (DOC). On December
7, 2018, the defendants filed a notice of removal pursuant to
28 U.S.C. § 1441, and they paid this Court's full
December 19, 2018, Plaintiff was directed to file an amended
complaint (Dkt. 6). The Court's instructions directed
him, among other things, to state the defendants' full
names, the particular events of which he is complaining, the
constitutional basis for his claims, and how the
defendants' personal participation violated his
constitutional rights. Id. at 4-5.
January 7, 2019, Plaintiff filed an amended complaint naming
four defendants: Mike Carpenter, OSP Warden; Joe M. Allbaugh,
DOC Director; John/Jane Doe, Population Officer; and
John/Jane Doe, DOC Deputy Director (Dkt. 10). On March 22,
2019, Plaintiff filed a “motion to submit into evidence
to support plaintiff [sic] civil complaint” (Dkt. 11),
which the Court construed as a supplement to the amended
complaint. The document concerned Plaintiff's alleged
living conditions in maximum security, but it failed to set
forth any constitutional claims against the defendants.
April 22, 2019, the Court advised Plaintiff by letter that if
he wanted the United States Marshals Service (USMS) to serve
the summonses and complaint, he would have to contact the
Service and make arrangements for paying the fees (Dkt. 12).
Plaintiff next filed a motion for service of the four
defendants by the USMS, explaining he is indigent (Dkt. 18).
On May 14, 2019, the Court informed Plaintiff that he would
need to submit a proper motion to proceed in forma
pauperis for service by the USMS (Dkt. 19). The Court
Clerk was directed to send Plaintiff an ifp form and
new USM-285 forms for each defendant. Id.
23, 2010, Plaintiff filed a motion for leave to proceed
ifp (Dkt. 20). The motion, however, listed five
defendants, instead of the four defendants listed in the
amended complaint. Plaintiff apparently has located the names
of the “John/Jane Doe” defendants, but he also
has added a defendant. Because the amended complaint only
lists four defendants, Plaintiff must file a second amended
complaint to include all defendants.
twenty-one (21) days of the entry of this Order, Plaintiff
must file a second amended complaint on the Court's form.
The second amended complaint must set forth the full name of
each person he is suing under 42 U.S.C. § 1983. See
Sutton v. Utah State Sch. for the Deaf & Blind, 173
F.3d 1226, 1237 (10th Cir. 1999) (holding that “a cause
of action under § 1983 requires a deprivation of a civil
right by a 'person' acting under color of state
law”). Plaintiff must provide a short and plain
statement of when and how each named
defendant violated his constitutional rights and showing
Plaintiff is entitled to relief from each named defendant.
See Fed. R. Civ. P. 8(a). He also shall identify a
specific constitutional basis for each claim. See
Id. He is admonished that simply alleging that a
defendant is an employee or supervisor of a state agency is
inadequate to state a claim. Plaintiff must go further and
state how each named defendant's personal participation
violated his constitutional rights. Furthermore, the Court
will only consider claims Abased upon the violation of a
plaintiffs personal rights, and not the rights of someone
else." Archuleta v. McShan, 897 F.2d 495, 497
(10th Cir. 1990).
second amended complaint must include all claims and
supporting material to be considered by the Court. It must be
complete in itself, including exhibits, and may not reference
or attempt to incorporate material from the original
complaint, the first amended complaint, or any supplements or
exhibits. A second amended complaint supersedes the original
complaint and the first amended complaint and renders those
previous documents 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).
See also Local Civil Rule 9.2(c). In addition, the
second amended complaint must be clearly legible, and only
one side of the paper may be used, pursuant to Local Civil
Court Clerk is directed to send Plaintiff the proper form for
filing a second amended complaint. If Plaintiff fails to file
a second amended complaint in accordance with this Order,
this action shall be dismissed for failure to state a claim
upon which relief may be granted.
Plaintiff is directed to file within twenty-one (21) days a
second amended complaint on the Court's form as directed
in this Order. The Court Clerk is directed to send Plaintiff
a copy of the form for filing a second amended civil rights
complaint in this Court. Failure to comply with this Order
will result in dismissal of this action without further