Banks v. Eddy et al

Filing 11

ORDER REGARDING REPORT AND RECOMMENDATIONS Accepting 9 Report and Recommendation. Amended Complaint deadline: 3/10/2017., Renewed Application for Fee Waiver due 3/10/2017. Signed by Judge Andrew P. Gordon on 2/1/2017. (Copies have been distributed pursuant to the NEF, cc: IFP to P - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FREDERICK BANKS,

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Plaintiff,

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v.
CYNTHIA REED EDDY, et al.,

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Defendants.

Case No. 2:16-cv-01152-APG-NJK
ORDER ON REPORT AND
RECOMMENDATION
(ECF NO. 9)

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On December 2, 2016, Magistrate Judge Koppe entered an order denying plaintiff

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Frederick Banks’ application to proceed in forma pauperis because he did not include a signed

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and completed financial certificate and a properly certified account statement. ECF No. 9. Judge

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Koppe also recommended that I dismiss the complaint without prejudice for failure to adequately

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allege facts showing venue lies in the District of Nevada. Id. Banks objects, arguing that because

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he is an American Indian, the court should construe any ambiguous provisions in his favor. ECF

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No. 10. Banks contends that it is unclear what a “financial certificate” means or what “proper

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certification” of a trust fund statement requires. Banks also argues that he adequately alleged

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facts supporting venue because he alleges the wireless signals originated in or passed through

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Nevada.
I conducted a de novo review of the issues set forth in the report and recommendation. 28

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U.S.C. § 636(b)(1). As to the application to proceed in forma pauperis, Banks previously

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completed a financial certificate, which was certified by a prison official, and thus he has

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demonstrated he understood and could comply with those requirements. See ECF No. 4 at 4. He

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does not explain why he did not do so in relation to his latest application. Banks has had several

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opportunities to properly complete an application to proceed in forma pauperis. I nevertheless

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will give him one final chance to do so in this case.

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As to venue, the proposed second amended complaint alleges that the purported

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surveillance “originated in many places including Las Vegas because it was sent via satellite on a

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wireless signal.” ECF No. 8-1 at 1. Banks’ proposed second amended complaint is not clear

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about whether he means to allege the signal originated in Nevada or merely passed through

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Nevada. The mere passing of a wireless signal through Nevada does not establish venue here.

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However, I will grant Banks leave to amend to allege where the purported wireless signal

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originated before it was sent to the satellite. If Banks contends the signal originated elsewhere

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and merely passed through Nevada, then I advise him that venue does not lie in this District.

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IT IS THEREFORE ORDERED that Judge Koppe’s report and recommendation (ECF

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No. 9) is accepted and modified to grant leave to file a properly completed application to proceed

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in forma pauperis and to grant leave to amend to allege facts supporting venue in this District.

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IT IS FURTHER ORDERED that the Clerk of the Court shall send Banks a blank
application form for pro se litigants who are incarcerated.

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IT IS FURTHER ORDERED that on or before March 10, 2017, Banks shall file a

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renewed application to proceed in forma pauperis, accompanied by a signed, completed financial

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certificate and a certified statement from his inmate trust account for the previous six months. He

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may not rely upon, incorporate, or cite to previously filed certificates and statements.

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Alternatively, Banks shall make the necessary arrangements to pay the $400 filing fee.

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IT IS FURTHER ORDERED that on or before March 10, 2017, Banks shall file an

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amended complaint correcting the identified deficiency if he can do so. If Banks chooses to

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amend the complaint, I inform him that the court cannot refer to a prior pleading to make an

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amended complaint complete. This is because, as a general rule, an amended complaint

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supersedes the original complaint. Local Rule 15-1 requires that an Amended Complaint be

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complete in itself without reference to any prior pleading. Once a plaintiff files an amended

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complaint, prior versions of the complaint no longer serve any function in the case. Therefore, in

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an amended complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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IT IS FURTHER ORDERED that failure to comply with this order will result in the
dismissal of this case without prejudice.
DATED this 1st day of February, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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