Banark v. Dzurenda et al

Filing 32

ORDER. IT IS HEREBY ORDERED that 30 Plaintiff's Motion to Supplement an Existing Civil Rights Complaint is DENIED, without prejudice to Plaintiff filing a proper motion to amend his complaint. IT IS FURTHER ORDERED that 31 Motion for Current Magistrate Judge to be Excluded is DENIED. Signed by Magistrate Judge George Foley, Jr on 1/8/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LONNIE LEE BANARK,

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Plaintiff,
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vs.
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JAMES DZURENDA, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-02555-JCM-GWF
ORDER

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This matter is before the Court on Plaintiff’s Motion to Supplement an Existing Civil Rights

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Complaint (ECF No. 30 and Motion for Current Magistrate Judge to be Excluded (ECF No. 31), filed
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on January 4, 2018.

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Plaintiff’s motion to supplement seeks to add information regarding a policy implemented by

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Defendant Dzurenda, which Plaintiff believes was approved of with gross negligence and deliberate

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indifference. To the extent that Plaintiff seeks to add this claim to his amended complaint, Plaintiff is

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again advised that he must file a full and complete second amended complaint that includes Plaintiff’s

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original allegations and those he wishes to add. The Court will not piecemeal documents together to

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determine what allegations Plaintiff seeks to raise in his complaint.1 The Court will therefore deny

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Plaintiff’s motion to supplement.

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Plaintiff’s motion for current magistrate judge to be excluded requests that the undersigned be
removed from the case because Plaintiff disagrees with the Court’s prior Order (ECF No. 26) and

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1. If Plaintiff chooses to file a second amended complaint he is advised that a second amended complaint supersedes
(replaces) the original and amended complaints and, thus, the second amended complaint must be complete in itself. See
Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a
party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v.
Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not
required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Plaintiff’s second
amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this
lawsuit. Moreover, Plaintiff must file the second amended complaint on this Court’s approved prisoner civil rights form
and it must be entitled “Second Amended Complaint.”

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believes the undersigned is biased. Specifically, Plaintiff believes the language discussing how the

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filing fees must be taken out of his account pursuant to 28 U.S.C. § 1915(b)(2) is meant as a “pre-trial

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punishment” on Plaintiff and was encouraged by the Attorney General’s office. This is simply not the

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case. The Court will therefore deny Plaintiff’s motion to exclude as well. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Supplement an Existing Civil Rights

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Complaint (ECF No. 30 is denied, without prejudice to Plaintiff filing a proper motion to amend his
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complaint.

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IT IS FURTHER ORDERED that Motion for Current Magistrate Judge to be Excluded
(ECF No. 31) is denied.
DATED this 8th day of January, 2018.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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