Allen v. Reid
1:07-cv-01225 | D. Colo. | Jul 20, 2007
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|N THE UN|TED STATES D|STR|CT COURT
FOR THE DlsTRlCT OF COLORADO F l L E D
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Civil Action No. 07-cv-01225-BNB -'JUL 3 g 2097
sl-IAWN D. ALLEN, GREG ._._.\€--‘z‘~stAM
c\_sei»€
Plaintiff, . .......
v.
WARDEN LARRY RE|D, and
DENN|S BURBANK,
Defendants.
ORDER D|RECTING PLA|NT|FF TO F|LE SECOND AIV|ENDED CO|V|PLA|NT
Piaintiff, Shawn D. A|ien, is a prisoner in the custody of the Colorado Department
of Corrections at the Centennial Correctiona| Facility at Canon City, Co|orado. l\/|r. Al|en
initiated this action by filing pro se a Prisoner Comp|aint. On June 21, 2007, lVlr. Allen
filed an amended complaint on the proper Prisoner Comp|aint form. Nlr. A||en asserts
constitutional claims pursuant to 42 U.S.C. § 1983.
The court must construe the amended complaint liberally because l\/lr. Allen is
representing himse|f. See Haines v. Kemer, 404 U.S. 519" date_filed="1972-02-22" court="SCOTUS" case_name="Haines v. Kerner">404 U.S. 519, 520-21 (1972); Ha” v.
Be”mon, 935 F.2d 1106" date_filed="1991-06-03" court="10th Cir." case_name="Kenneth Hall v. Henry Bellmon">935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be the
pro se |itigant’s advocate. See Ha”, 935 F.2d 1106" date_filed="1991-06-03" court="10th Cir." case_name="Kenneth Hall v. Henry Bellmon">935 F.2d at 1110. For the reasons stated below,
lVlr. Allen Wil| be ordered to file a second amended complaint
The court has reviewed l\/lr. Al|en's amended complaint and finds that it is
deficient because it is not compiete. instead of including all of the allegations in support
of his claims in the amended complaint, lV|r. Allen refers to various pages that Were
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attached to the original complaint but are not attached to the amended complaint He
may not do so if he wants the court to consider the allegations contained in the
additional pages. l\/lr. Ailen fails to understand that "an amended complaint supercedes
the original complaint and renders the original complaint without legal effect.” Mink v.
Suthers, 482 F.3d 1244" date_filed="2007-04-16" court="10th Cir." case_name="Mink v. Dominguez">482 F.3d 1244, 1254 (10th Cir. 2007). Therefore, l\/ir. Ailen will be directed to
file a second amended complaint that includes ali of the claims and allegations he
wishes to have the court consider in this action.
l\/lr. Ailen also has filed two motions that are pending. On June 21, 2007, l\/lr.
Ailen filed a “Supplementary lvlotion to lViay 2007 i\/lotions, 1983 Civil Comp|aint,
Appointment of Counse|, Emergency Transfere [sic]” and a “i\/iotion to Add New Civil
Comp|aint With Current Action." The supplementary motion will be denied because it
does not relate to any prior motions filed in this action. instead, the supplementary
motion relates to and supplements prior motions filed by Nir. Ailen in another action he
has filed in this court. The “i\/iotion to Add New Civil Comp|aint With Current Action"
also appears to relate to the prior motions lVir. Ailen filed in his other case and will be
denied. |n addition, Plaintiff has not submitted a proposed amended complaint that
contains the additional claims he seeks to raise in this action. However, Piaintiff is
advised that he may include in the second amended complaint he will be ordered to file
all of the claims he wishes to pursue in this action. According|y, it is
ORDERED that i\/lr. Ailen file within thirty (30) days from the date of this
order a second amended complaint that complies with this order. lt is
FURTHER ORDERED that the clerk of the court mail to lVlr. Ailen, together with
a copy of this order, two copies of the following forms: Prisoner Comp|aint. lt is
2
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FURTHER ORDERED thatl if lVlr. Ailen fails within the time allowed to file a
second amended complaint that complies with this order to the court’s satisfaction, the
action will be dismissed without further notice. lt is
FURTHER ORDERED that the “Supplementary l\/lotion to lViay 2007 l\/lotions,
1983 Civil Comp|aint, Appointment of Counsel, Emergency Transfere [sic]” filed on
June 211 2007, and the “i\/iotion to Add New Civil Comp|aint With Current Action” filed
on June 21, 20071 are denied
DATED Ju|y 20, 2007, at Denver, Colorado.
BV THE COURT:
s/ Bovd N. Boland
United States l\/lagistrate Judge
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|N THE UN|TED STATES D|STR|CT COURT
FOR THE D|STR|CT OF COLORADO
CERT|F|CATE OF IV|A|L|NG
Civil Action No. 07-cv-01225-BNB
Shawn D. Ailen
Prisoner No. 113014
Centennial Corr. Faci|ity
PO Box 600
Canon City, CO 81215
l hereby certify that i have mailed a copy of the ORD R nd two copies of the
Prisoner Comp|aint to the above-named individuals on 7 3d 67
GREGORY C. LANGHAN|, CLERK
' l
/§@lu
w UDeputy C|erk
By: