Cohen v. Whitley

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 STEVEN COHEN, Case No.: 2:19-cv-01033-APG-EJY

4 Plaintiff Order (1) Denying Motion for Recusal, (2) Denying Petitions for Writ of 5 v. Mandamus or Prohibition, (3) Extending the Deadline to Serve Defendants 6 STATE OF NEVADA DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., [ECF Nos. 13, 15, 17] 7 Defendants 8

9 Plaintiff Steven Cohen previously worked for the State of Nevada, Department of Health 10 and Human Services, Division of Health Care, Financing, and Policy. He sues his former 11 employer, along with the Department of Administration, Division of Human Resource 12 Management and the Department of Employment, Training, and Rehabilitation, Bureau of 13 Vocational Rehabilitation. He contends he was released from employment in January 2019 in 14 violation of Title I of the Americans with Disabilities Amendments Act because his employer did 15 not engage in the interactive process to find a reasonable accommodation for his disability. ECF 16 No. 10. 17 Cohen requests that I recuse myself from presiding in this case because we both 18 participate twice a year in a law-related education program for high-school students known as 19 We the People. ECF No. 15. Cohen also filed an emergency petition for writs of mandamus or 20 prohibition. He contends that he has secured employment with the State of Nevada, Department 21 of Conservation and Natural Resources, Division of State Parks (Parks Department), with an 22 anticipated start date of July 20, 2020. He asserts he needs emergency relief to adjust the step 23 and grade of the Parks Department’s offer of employment to reflect the step and grade he would 1 have if he had not been improperly terminated in January 2019. Cohen also moves to reconsider 2 Magistrate Judge Youchah’s order denying his request for oral argument and for her to preside 3 over the entire case. In connection with his motions, he requested an extension of time in which 4 to serve the defendants. 5 A. Recusal

6 Recusal in federal court is governed by 28 U.S.C. § 455. Subsection 455(b) provides a 7 list of circumstances in which a judge is required to recuse himself, including when “he has a 8 personal bias or prejudice concerning a party . . . .” Subsection 455(a) requires recusal when “a 9 reasonable person with knowledge of all the facts would conclude that the judge’s impartiality 10 might reasonably be questioned.” United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) 11 (quotation omitted). “The reasonable person is not someone who is hypersensitive or unduly 12 suspicious.” United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (quotations omitted). 13 I deny Cohen’s recusal request under § 455(b). I do not recognize Cohen’s name, I do 14 not remember working with him on the We the People program, and I have no personal bias or

15 prejudice for or against him. I deny his recusal request under § 455(a) because our joint 16 participation in a law-related education program twice a year, at which we may or may not even 17 speak to each other, would not lead a reasonable person with knowledge of all the facts to 18 question my impartiality. 19 B. Writ Petition 20 I deny Cohen’s emergency writ petition because there is no emergency and no need for a 21 writ. Even if Cohen prevails on his claims such that his step and grade should be adjusted at his 22 new job, he does not cite any law showing that cannot be accomplished retroactively or cannot 23 be compensated through money damages. He likewise does not explain why his requests to 1 vacate his termination and for damages or for a “cooling off period” for “any further case closure 2 request” concerning him should not be resolved after the defendants have had an opportunity to 3 appear and respond in this case. Finally, I deny his request for a writ of mandamus “ordering the 4 Legislative Branch and/or Governor to consider prospective changes” to Nevada law. Federal 5 courts are not in the business of ordering state legislatures and governors to consider changes in

6 state law. 7 C. Service of Process 8 A review of the docket in this case shows that no summons has been issued and there is 9 no proof of service on any defendant. The deadline to file a proof of service for the second 10 amended complaint expired on April 2, 2020. Cohen states in his motion for oral argument and 11 in his motion for reconsideration that it has been difficult to serve the defendants because of the 12 COVID-19 pandemic. I construe his motion for reconsideration as a request to extend the 13 deadline to serve the defendants under Federal Rule of Civil Procedure 4(m), and I grant the 14 request. Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint is

15 filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action 16 without prejudice against that defendant or order that service be made within a specified time.”). 17 Under Federal Rule of Civil Procedure 4(b), Cohen must present a summons to the clerk 18 for each defendant to be served. A form summons (form AO 440) can be found on the court’s 19 website (www.nvd.uscourts.gov/court-information/forms/). I refer Cohen to Federal Rule of 20 Civil Procedure 4 for the requirements to properly serve the summons and second amended 21 complaint on each defendant. I will extend the deadline to serve the defendants until September 22 14, 2020. If he does not properly serve them by that date, this lawsuit may be dismissed under 23 Rule 4(m) without further notice. 1 D. Conclusion 2 I THEREFORE ORDER that plaintiff Steven Cohen’s motion for recusal (ECF No. 15) DENIED. 4 I FURTHER ORDER that plaintiff Steven Cohen’s emergency petition for writs of mandamus or prohibition (ECF No. 13) is DENIED. 6 I FURTHER ORDER that plaintiff Steven Cohen’s motion for reconsideration (ECF No. 7\|17) is GRANTED IN PART in that I extend the deadline for him to properly serve the 8|| defendants to September 14, 2020. Failure to properly serve the defendants by that date will 9|| result in dismissal of this action without prejudice. 10 DATED this 14th day of July, 2020. 11 12 ANDREW P. GORDON B UNITED STATES DISTRICT JUDGE

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