                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      November 30, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
WADE LAY,

      Plaintiff - Appellant,

v.                                                         No. 15-7023
                                              (D.C. No. 6:13-CV-00481-RAW-SPS)
OKLAHOMA DEPARTMENT OF                                     (E.D. Okla.)
CORRECTIONS; MAURICE
WARRIOR,* Warden; KEITH
SHERWOOD; OKLAHOMA STATE
PENITENTIARY,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT†
                         _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________


      State prisoner Wade Lay appeals from the dismissal of his pro se § 1983 claim

as frivolous under 28 U.S.C. § 1915. Exercising jurisdiction under 28 U.S.C. § 1291,



      * Under Fed. R. App. P. 43(c)(2), Deputy Maurice Warrior is substituted for
Anita Trammell as Interim Warden of the Oklahoma State Penitentiary, effective
October 28, 2015.
      †
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
we vacate the district court’s dismissal order and remand for further consideration

consistent with this order and judgment.

      On October 24, 2013, Mr. Lay, a death-sentenced inmate incarcerated at the

Oklahoma State Penitentiary (OSP) and in the custody of the Oklahoma Department

of Corrections (DOC), brought a civil rights action under 42 U.S.C. § 1983 against

the DOC, OSP Warden Anita Trammell, OSP Case Manager Keith Sherwood, and the

OSP.1 Complaint, Lay v. Okla. Dep’t of Corr., No. 6:13-CV-00481-RAW-SPS (E.D.

Okla. Oct. 24, 2013), ECF No. 1. The court entered a minute order that same day,

stating Mr. Lay had failed to submit a proper civil rights complaint on a form

approved for use in the Eastern District of Oklahoma and directing him to file an

amended complaint on that form. ECF No. 4.

      On November 13, 2013, Mr. Lay filed a 53-page amended complaint. ECF

No. 12. On November 18, 2013, the court struck the amended complaint based on

Mr. Lay’s failure to comply with (1) the court’s order directing him to submit an

amended complaint on the correct form, and (2) Federal Rule of Civil Procedure

8(a)(2), which requires “a short and plain statement of the claim showing that the

pleader is entitled to relief.” See ECF No. 16.

      On December 3, 2013, Mr. Lay filed an 11-page second amended complaint.

ECF No. 18. Although the allegations of the amended complaint and the second

amended complaint overlap in significant part, they also include substantive


      1
        Mr. Lay also brought this action against D. Orman. He then voluntarily
dismissed Mr. Orman as a defendant on November 13, 2013.
                                           2
differences. Defendants moved to dismiss the second amended complaint or,

alternatively, for summary judgment. ECF No. 40.

      On March 16, 2015, the court dismissed the amended complaint, ECF No. 12,

as frivolous. ECF No. 89. References in the court’s order to the amended complaint,

as opposed to the second amended complaint, show this is not a matter of clerical

error. By dismissing the previously stricken amended complaint, the district court

dismissed an inoperative pleading. Mr. Lay points this out in his motion to vacate

judgment, filed on November 27, 2015. We therefore grant the motion on this

ground, vacate the district court’s dismissal order, ECF No. 89, and remand for

consideration of Mr. Lay’s second amended complaint, ECF No. 18.


                                          ENTERED FOR THE COURT,



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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