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Ellison v. State of Montana Wardens

United States District Court, D. Montana, Helena Division

December 15, 2017

LIONEL SCOTT ELLISON, Plaintiff,
v.
STATE OF MONTANA WARDENS, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston, United States Magistrate Judge

         Pending are Plaintiff Lionel Ellison's motion to partially amend original complaint (Doc. 28), motion to appoint master (Doc. 30), motion for reconsideration (Doc. 31), motion for immediate assistance (Doc. 33), motion for show cause hearing (Doc. 34), motion for emergency injunctive relief and TRO (Doc. 35), and motion to incorporate petition for writ of habeas corpus (Doc. 37). Defendants only responded to Mr. Ellison's motion for immediate assistance (Doc. 36.)

         I. MOTION TO AMEND (Doc. 28)

         Local Rule 15.1 requires that, “[w]hen a party moves for leave to amend or supplement a pleading, the proposed pleading must be attached to the motion as an exhibit.” Mr. Ellison did not submit a proposed pleading and therefore his motion must be denied without prejudice subject to his compliance with Local Rule 15.1.

         Mr. Ellison is advised that if he is granted leave to file an amended complaint, the Court cannot refer to the original complaint or any supplements thereto to make the amended complaint complete. The amended complaint must be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967).

         Once Mr. Ellison files an amended complaint, his original complaint and any supplements to that complaint will no longer serve any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. If Mr. Ellison wants to file an amended pleading, he must submit a proposed pleading which contains all the claims he wants to pursue against all the defendants he wants to name.

         II. MOTION TO APPOINT MASTER (Doc. 30)

         Mr. Ellison asks the Court to appoint a master for him to contact whenever a document is filed with the Court, whenever anything is requested by the Court of Mr. Ellison, or whenever he files a document. He then expects this “master” to notify him by phone at MSP and by U.S. Mail and to assist him with copies of all documents to opposing counsel. He seeks such an appointment due to alleged retaliatory acts by MSP and Defendants.

         There is no authority for the Court to appoint such an individual and the Court has already denied Mr. Ellison's motion for the appointment of counsel. The motion will be denied but in the Court's Scheduling Order the Clerk of Court's Office will be directed to provide Mr. Ellison with copies of the pertinent local rules and Federal Rules of Civil Procedure.

         III. MOTION FOR RECONSIDERATION (Doc. 31)

         Mr. Ellison asks the Court to reconsider its prior Order denying his request for a preliminary and permanent injunction. (Doc. 31.) On June 21, 2017, the Court recommended to Chief District Court Judge Christensen that he deny Mr. Ellison's motions for injunction relief contained in his Complaint and in his motion for temporary restraining order and preliminary injunction. (Doc. 10.) Judge Christensen has not yet ruled on those recommendations.

         Local Rule 7.3 provides as follows:

(a) Leave of Court Required. Before the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case, any party may make a motion before a judge requesting that the judge grant the party leave to file a motion for reconsideration of any interlocutory order made by that judge on any ground set forth in L.R. 7.3(b)(1) or (2). No party may file a motion for reconsideration without prior leave of court.
(b) Form and Content of Motion for Leave. A motion for leave to file a motion for reconsideration must be limited to seven pages and must specifically meet at least ...

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