de Grise v. Bagus et al

Filing 30

ORDERED that P's # 26 Motion to Proceed in Quo Warranto and # 28 Motion for Summary Judgment are DENIED. FURTHER ORD P's amended complaint due by 5/11/2012, titled as "AMENDED COMPLAINT" with case number above. Signed by Judge Larry R. Hicks on 4/10/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BENJAMIN W. DE GRISE,

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Plaintiff,

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v.

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COLLEEN BAGUS; et al.,

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Defendants.

3:10-cv-0662-LRH-WGC
ORDER

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Before the court is pro se plaintiff Benjamin W. de Grise’s (“de Grise”) Motion to Proceed

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in Quo Warranto (#261), along with defendants Colleen Bagus (“Bagus”) and Carol Stewart’s

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(“Stewart”) opposition (#27). Also before the court is de Grise’s Motion for Summary Judgment

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(#28), along with Defendants’ opposition (#29).

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I.

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Facts and Background
This action stems from the denial of de Grise’s unemployment benefits by defendants Bagus

and Stewart, employees of Nevada’s Department of Employment, Training and Rehabilitation.

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On October 21, 2010, de Grise filed a 42 U.S.C. § 1983 civil rights complaint (#6) against

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Defendants. In response, Defendants filed a motion to dismiss (#11). Thereafter, de Grise filed a

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series of motions he styled as motions to proceed (##13, 15, 20, 22) and a motion to change venue

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Refers to the court’s docket number.

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(#16).

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On August 25, 2011, this court entered an order (#24) construing de Grise’s various

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motions as motions for leave to file an amended complaint to add several causes of action, granted

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de Grise’s first motion to proceed by granting him leave to amend his complaint, and denied the

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remaining motions to proceed as duplicative. The court also denied de Grise’s motion to transfer

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venue, and denied Defendants’ motion to dismiss without prejudice. Regarding amendment, the

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court directed: “Plaintiff Benjamin W. de Grise shall have thirty (30) days to file an amended

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complaint that alleges, in one document, all causes of action against defendants and shall serve a

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copy of the amended complaint upon defendants in accordance with Rule 4 of the Federal Rules of

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Civil Procedure.”

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No amended complaint was filed in accordance with the court’s order. Instead, on

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September 6, 2011, de Grise filed the instant “Motion: Move to Proceed in Quo Warranto” (#26),

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which Defendants opposed (#27) on September 22, 2011. Also, on November 9, 2011, de Grise

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filed the instant Motion for Summary Judgment (#28), which Defendants opposed (#29) on

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December 2, 2011.

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II.

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Discussion
The motion to proceed in quo warranto is subtitled as an “Amendment” and, under the

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heading “cause of action,” seeks the “District Court to bring Quo Warranto proceedings forthly.”

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Taken on its terms, de Grise’s motion lacks merit. “Quo warranto is addressed to preventing a

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continued exercise of authority unlawfully asserted, not to a correction of what already has been

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done under it or to a vindication of private rights. It is an extraordinary proceeding, prerogative in

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nature, and . . . there is no statute delegating to an individual the right to resort to it.” Johnson v.

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Manhattan Ry. Co., 289 U.S. 479, 502 (1933).

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Considered as an amended complaint, de Grise’s motion does not comply with this court’s

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direction “to file an amended complaint that alleges, in one document, all causes of action against

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defendants.” Indeed, de Grise’s filing contains none of the factual allegations or claims for relief

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presented in his previous filings.

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For the foregoing reasons, de Grise’s motion to proceed in quo warranto shall be denied, as

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shall his motion for summary judgment. However, the court shall permit de Grise one last

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opportunity to file an amended complaint.

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IT IS THEREFORE ORDERED that Plaintiff ‘s Motion to Proceed in Quo Warranto (#26)
and Motion for Summary Judgment (#28) are DENIED.
IT IS FURTHER ORDERED that Plaintiff Benjamin W. de Grise shall have thirty (30) days

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to file an amended complaint that alleges, in one document, all causes of action against defendants

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and shall serve a copy of the amended complaint upon defendants in accordance with Rule 4 of the

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Federal Rules of Civil Procedure. Plaintiff is advised that pursuant to Local Rule 5-1, the amended

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complaint shall be complete in itself, without reference to any previous complaint, and shall

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include all allegations, claims, parties, and requests for relief. Any allegations, claims, parties, or

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requests for relief from prior papers that are not stated in the amended complaint will no longer be

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before the court. Plaintiff shall clearly title the amended complaint as such by placing the words

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“AMENDED COMPLAINT” on page one in the caption, below the case number, 3:10-CV-00662-

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LRH-WGC. Failure to comply will result in dismissal of this action.

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IT IS SO ORDERED.

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DATED this 10th day of April, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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