Orth v. Duffy

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 SEAN RODNEY ORTH, ) 4 ) Plaintiff, ) Case No.: 2:21-cv-01988-GMN-VCF 5 vs. ) 6 ) ORDER PHILLIP DUFFY, et al., ) 7 ) Defendants. ) 8 ) 9 Pending before the Court is Plaintiff Sean Rodney Orth’s (“Plaintiff’s”) Objection, (ECF 10 No. 32), to the Magistrate Judge’s Report and Recommendation (“R&R”), (ECF No. 30), 11 recommending that the Court dismiss the case. Defendants Phillip Duffy, et al. (collectively, 12 “Defendants”) filed a Motion in Support of the Magistrate Judge’s R&R, (ECF No. 33), to 13 which Plaintiff filed a Response, (ECF No. 34). 14 Also pending before the Court are two Motions for Reconsideration, (ECF Nos. 21, 23), 15 filed by Plaintiff. Defendants filed a Response, (ECF No. 25), to which Plaintiff filed a Reply, 16 (ECF No. 26). 17 For the reasons discussed below, the Court GRANTS Plaintiff’s Objection, DENIES 18 Defendants’ Motion in Support of the Magistrate Judge’s R&R, REJECTS and REMANDS 19 the Magistrate Judge’s R&R, and DENIES Plaintiff’s Motions for Reconsideration without 20 prejudice.1 21 /// 22

23 1 Plaintiff requests that the Court reconsider its Order, (ECF No. 19), denying his Motion for Preliminary 24 Injunction, (ECF No. 5). (Mots. Reconsideration, ECF Nos. 21, 23). Because there is no operative complaint in this case, the Court is unable to rule on Plaintiff’s Motions for Reconsideration. The Court therefore DENIES 25 the Motions for Reconsideration without prejudice. Although “[m]otions for reconsideration must be brought within a reasonable time,” D. Nev. LR 59-1(c), the Court will permit Plaintiff to file a new motion for reconsideration of the Court’s Order, (ECF No. 19), if Plaintiff is able to file a complaint that is not dismissed. 1 I. BACKGROUND 2 This case arises out of Defendants’ allegedly unlawful search and seizure of Plaintiff. 3 (See Order, ECF No.19).2 On May 18, 2022, Magistrate Judge Cam Ferenbach granted 4 Plaintiff’s Motion/Application to Proceed In Forma Pauperis. (Magistrate Judge’s Order, ECF 5 No. 27). The Magistrate Judge simultaneously dismissed Plaintiff’s Complaint, (Compl., ECF 6 No. 24-1), with leave to amend. (See generally Magistrate Judge’s Order, ECF No. 27).3 The 7 Magistrate Judge dismissed Plaintiff’s Complaint based on the Younger doctrine and instructed 8 Plaintiff that “[i]f he amends, he must show whether the criminal charges related to his arrest 9 have been resolved or are still pending.” (Id. 4:10–5:8). Additionally, the Magistrate Judge 10 dismissed Plaintiff’s excessive force claim because Plaintiff did not comply with Rule 8 of the 11 Federal Rules of Civil Procedure and Plaintiff’s Eighth Amendment claim because the Eighth 12 Amendment does not apply until after there has been an adjudication of guilt. (Id. 5:9–6:16). 13 The Magistrate Judge’s Order set a deadline of June 17, 2022, for Plaintiff to file an amended 14 complaint. 15 Plaintiff submitted an Amended Complaint on May 25, 2022. (See Am. Compl., ECF 16 No. 29-1).4 Although Plaintiff still had sixteen days to comply with the Magistrate Judge’s 17 Order, the Magistrate Judge entered the R&R on June 1, 2022, recommending that the Court 18 dismiss Plaintiff’s claims. (See R&R, ECF No. 30). The Magistrate Judge recommends that the 19 Court dismiss Plaintiff’s claims because the Amended Complaint did not address the issues 20 raised in the Magistrate Judge’s Order granting leave to amend. (Id. 2:4–6). Plaintiff objects to 21 this recommendation. (Objection, ECF No. 32). 22 /// 23 24 2 The Court incorporates the background information of Plaintiff’s claims from its previous Order, (ECF No. 19). 3 Plaintiff filed several amended complaints before the Magistrate Judge dismissed the Complaint with leave to 25 amend. (See Min. Orders, ECF Nos. 6, 15). 4 Courts “liberally construe the ‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). 1 II. LEGAL STANDARD 2 A party may file specific written objections to the findings and recommendations of a 3 United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); 4 D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo 5 determination of those portions to which objections are made. D. Nev. R. IB 3-2(b). 6 III. DISCUSSION 7 The Court finds that the Magistrate Judge entered the R&R prematurely, depriving 8 Plaintiff of the opportunity to correct the deficiencies in his Complaint. The Magistrate Judge 9 entered the R&R sixteen days before the deadline for Plaintiff to file an amended complaint. 10 Moreover, Plaintiff had filed several amended complaints before the Magistrate Judge 11 dismissed the Complaint with leave to amend. (See Min. Orders, ECF Nos. 6, 15). The fact that 12 Plaintiff filed another amended complaint does not mean he did so in response to the Magistrate 13 Judge’s Order, (ECF No. 27). 14 Rather, the timeline suggests Plaintiff did not file the Amended Complaint, (ECF No. 15 29-1), in response to the Magistrate Judge’s Order. Indeed, Plaintiff asserts that he drafted the 16 Amended Complaint before receiving the Magistrate Judge’s Order identifying the 17 shortcomings of his Complaint. (Objection at 3, 5, ECF No. 32). Plaintiff filed ECF No. 29 18 only five days after the Magistrate Judge entered the Order dismissing Plaintiff’s Complaint 19 with leave to amend. (See Min. Orders, ECF No. 27, 29). The short timeline between the filing 20 of the Magistrate Judge’s Order and the filing of Plaintiff’s Amended Complaint supports 21 Plaintiff’s assertion that he filed his Amended Complaint before receiving the Magistrate 22 Judge’s Order. Accordingly, the Court REJECTS the Magistrate Judge’s R&R and 23 REMANDS for the Magistrate Judge to provide additional time for Plaintiff to file an amended 24 complaint addressing the deficiencies noted in the Magistrate Judge’s Order, (ECF No. 27). 25 /// 1 IV. CONCLUSION 2 IT IS HEREBY ORDERED that the Objection to the Magistrate Judge’s R&R, (ECF 3 No. 32), is GRANTED. 4 IT IS FURTHER ORDERED that the Motion in Support of the Magistrate Judge’s 5 Report and Recommendation, (ECF No. 33), is DENIED. 6 IT IS FURTHER ORDERED Report and Recommendation, (ECF No. 30), is 7 REJECTED and REMANDED. On Remand, the Magistrate Judge shall provide additional 8 time for Plaintiff to file an amended complaint. 9 IT IS FURTHER ORDERED that the Motions for Reconsideration, (ECF Nos. 21, 10 23), are DENIED without prejudice. Plaintiff may file a new motion for reconsideration if he 11 files an operative complaint that is not dismissed. 12 Dated this _2__9_ day of December, 2022. 13 ___________________________________ 14 Gloria M. Navarro, District Judge 15 United States District Court 16 17 18 19 20 21 22 23 24 25