Viox v. Porter et al

Filing 17

ORDER denying 16 motion to recuse; directing plaintiff to file amended complaint within 30 days; directing Clerk to send Plaintiff a copy of 8 screening order (transmitted 11/21/2014). Signed by Judge Miranda M. Du on 11/21/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES DEAN VIOX,

Case No. 3:14-cv-00357-MMD-WGC

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Plaintiff,

ORDER

v.
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NANCY PORTER et al.,
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Defendants.
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I.

DISCUSSION

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On October 20, 2014, this Court entered a screening order and dismissed the

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complaint in its entirety with respect to the allegations challenging Plaintiff’s conviction,

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appeal, and habeas proceedings pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).

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(Dkt. no. 8 at 4-5.) The Court granted Plaintiff leave to amend his complaint with respect

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to the allegations related to his incarceration at the Northern Nevada Correctional

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Center (“NNCC”). (Id. at 5.) The Court directed Plaintiff to file an amended complaint

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within thirty (30) days of the date of that order and stated that, if Plaintiff failed to file an

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amended complaint regarding his conditions of confinement, the Court would dismiss

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the action without prejudice. (Id.)

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On October 22, 2014, Plaintiff filed a motion for clarification and requested that

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this Court serve the 18 defendants listed in his complaint. (Dkt. no. 10 at 1.) On October

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27, 2014, the Court denied the motion because Plaintiff had not stated a cognizable

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claim in his complaint. (Dkt. no. 11 at 1.) The Court stated that, if and when Plaintiff

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stated a cognizable claim, the Court would order service on Defendants when

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procedurally applicable to do so. (Id.)

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On October 29, 2014, Plaintiff filed a notice of appeal as to the screening order.

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(Dkt. no. 12.) On November 13, 2014, the Ninth Circuit Court of Appeals dismissed the

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appeal for lack of jurisdiction because the screening order was not final or appealable.

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(Dkt. no. 15 at 1.)

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On November 17, 2014, Plaintiff filed a motion for this judge to recuse herself.

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(Dkt. no. 16 at 1.) Plaintiff alleges that this judge is in collusion with Defendants in this

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case because “clearly and without a doubt” his complaint states cognizable claims. (Id.)

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Plaintiff also directs this judge to include herself as one of the defendants. (Id.) Plaintiff

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states that this Court has not set a jury trial and deferred his application to proceed in

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forma pauperis for no obvious reason. (Id. at 2.) Plaintiff attempts to explain why his

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claims have merit. (Id. at 3-5.)

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Pursuant to 28 U.S.C. § 455, “any justice, judge, or magistrate judge of the

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United States shall disqualify himself in any proceeding in which his impartiality might

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reasonably be questioned.” 28 U.S.C. § 455(a). This judge declines to recuse herself

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from this matter because there is nothing in this case to demonstrate that her

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impartiality might be reasonably questioned. This judge dismissed Plaintiff’s claims

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challenging his conviction, appeal, and habeas proceedings pursuant to United States

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Supreme Court law. See Heck v. Humphrey, 512 U.S. 477 (1994). This judge also

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granted Plaintiff leave to file an amended complaint with respect to his conditions of

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confinement claim in order to give Plaintiff an opportunity to state a cognizable claim.

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Additionally, although Plaintiff wants to add this judge as a defendant to this case, he

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has not done so yet, because he has not filed an amended complaint naming her as a

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defendant.

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Plaintiff shall file his amended complaint within thirty (30) days from the date of

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entry of this order. If Plaintiff fails to file an amended complaint about his conditions of

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confinement, this action shall be dismissed without prejudice.

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II.

CONCLUSION
For the foregoing reasons, it is ordered that the motion to recuse (dkt. no. 16) is

denied.

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It is further ordered that Plaintiff shall file his amended complaint within thirty (30)

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days from the date of entry of this order in accordance with this Court’s screening order

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(dkt. no. 8).

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It is further ordered that if Plaintiff fails to file an amended complaint about his

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conditions of confinement within thirty (30) days from the date of entry of this order, this

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action shall be dismissed without prejudice.

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It is further ordered that the Clerk of the Court shall send Plaintiff a copy of this
Court’s screening order (dkt. no. 8).
DATED THIS 21st day of November 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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