Houston v. Lombardo

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Matthew Travis Houston, Case No. 2:22-cv-01748-APG-DJA 6 Plaintiff, 7 Order v. & 8 Report and Recommendation Sheriff Joe Lombardo, et al., 9 Defendants. 10 11 12 Before the Court is Plaintiff Matthew Travis Houston’s “emergency objection,” which 13 consists of a renewed application to proceed in forma pauperis (ECF No. 26); emergency motion 14 for recusal (ECF No. 27); and notice of objection and motion to reopen case (ECF No. 28). The 15 Court denies Plaintiff’s in forma pauperis application—filed as an “emergency objection”—and 16 denies Plaintiff’s emergency motion for recusal. The Court recommends denying Plaintiff’s 17 notice of objection and motion to reopen case. 18 I. Discussion. 19 A. Plaintiff’s “emergency objection.” 20 Plaintiff’s “emergency objection” does not explain which ruling Plaintiff is objecting to. 21 It is also not a motion or objection, but a renewed application to proceed in forma pauperis. 22 However, Plaintiff’s case was dismissed and closed in January of 2023, mooting his application 23 to proceed in forma pauperis. (ECF No. 21). The Court thus denies Plaintiff’s in forma pauperis 24 application, filed as an “emergency objection,” as moot. 25 B. Plaintiff’s emergency motion for recusal. 26 Plaintiff’s emergency motion for recusal appears to seek the recusal of the undersigned. 27 However, Plaintiff does not outline his reasons for seeking the undersigned’s recusal. A motion 1 alleging facts supporting the claim that the judge is biased or prejudiced against the movant. See 2 United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Because that is lacking here, and 3 because the undersigned finds no basis for recusal under 28 U.S.C. § 455, the Court denies the 4 motion. 5 C. Plaintiff’s notice of objection and motion to reopen case.1 6 The Court recommends denying Plaintiff’s motion to reopen his case. Although not 7 mentioned in the Federal Rules of Civil Procedure, motions for reconsideration may be brought 8 under Rules 59 and 60. Rule 59(e) provides that any motion to alter or amend a judgment shall 9 be filed no later than 28 days after entry of the judgment. The Ninth Circuit has held that a Rule 10 59(e) motion for reconsideration should not be granted “absent highly unusual circumstances, 11 unless the district court is presented with newly discovered evidence, committed clear error, or if 12 there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos 13 Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange Street Partners v. 14 Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 15 Under Rule 60(b), a court may, upon motion and just terms, “relieve a party ... from a 16 final judgment,” on the ground that the “judgment is void[.]” Fed. R. Civ. P. 60(b)(4). A 17 judgment is “void only if the court that rendered judgment lacked jurisdiction of the subject 18 matter, or of the parties, or if the court acted in a manner inconsistent with due process of law.” 19 In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985). Additionally, under Rule 60(b), 20 a court may relieve a party from a final judgment, order or proceeding only in the following 21 circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 22

23 1 Plaintiff’s notice of objection and motion to reopen case are improperly filed as a single 24 document. (ECF No. 28). See Nevada Local Rule IC 2-2(b) (“[f]or each type of relief requested or purpose of the document, a separate document must be filed…”). To the extent Plaintiff 25 separately seeks relief through his objection, Plaintiff’s objection has already been rejected. Plaintiff’s objection refers to the Court’s report and recommendation that Plaintiff’s case be 26 dismissed. (ECF No. 11). However, Plaintiff already filed an objection to that report and 27 recommendation. (ECF No. 14). And the Honorable District Judge Andrew P. Gordon considered that objection and nonetheless adopted the report and recommendation. (ECF No. 1 evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other 2 reason justifying relief from the judgment. See Fed. R. Civ. P. 60(b); Agha-Khan v. Mortgage 3 Electronic Registration Systems, Inc., No. 2:17-cv-02739-GMN-DJA, 2021 WL 811445, at *2 4 (D. Nev. Jan. 19, 2021). Rule 60(b) relief should only be granted under “extraordinary 5 circumstances.” Buck v. Davis, 580 U.S. 100, 123 (2017). 6 Here, Plaintiff does not identify the rule under which he brings his motion to reopen his 7 case. If it is under Rule 59, his motion is untimely. And even if it were timely, Plaintiff has not 8 demonstrated highly unusual circumstances to warrant reopening his case. Plaintiff vaguely 9 references his current housing situation and his poverty, but does not otherwise explain why those 10 circumstances are highly unusual in relation to his motion to reopen his case. 11 If Plaintiff brings his motion under Rule 60(b), he has not established the grounds on 12 which the judgment is void. Although Plaintiff states that there were jurisdictional issues with the 13 removal of his state case to federal court, Plaintiff is referencing a different case. Plaintiff 14 initiated the instant case in federal court through an application to proceed in forma pauperis. 15 The instant case was not removed from state court. Plaintiff also fails to demonstrate any of the 16 circumstances under Rule 60(b) under which he might be entitled to relief from final judgment in 17 this case. The court thus recommends that Plaintiff’s motion to reopen his case be denied. 18 19 ORDER 20 IT IS THEREFORE ORDERED that Plaintiff’s in forma pauperis application, filed as 21 an “emergency objection” (ECF No. 26), is denied as moot. 22 IT IS FURTHER ORDERED that Plaintiff’s emergency motion for recusal (ECF No. 23 27) is denied. 24 RECOMMENDATION 25 IT IS RECOMMENDED that Plaintiff’s motion to reopen his case (ECF No. 28) be 26 denied. 27 1 NOTICE 2 This report and recommendation is submitted to the United States District Judge assigned 3 to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 4 may file a written objection supported by points and authorities within fourteen days of being 5 served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 6 objection may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 7 1153, 1157 (9th Cir. 1991). 8 9 DATED: May 24, 2023 10 DANIEL J. ALBREGTS 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27