Toliver v. Las Vegas Metropolitan Police Department et al

Filing 7

ORDER that 4 Report and Recommendation is rejected. FURTHER ORDERED that 6 MOTION for Reconsideration is construed in the Court's discretion as an untimely objection to the Report and Recommendation coupled with a request for an extensio n of time to file that objection, and that Plaintiff's request to file the untimely objection is granted. FURTHER ORDERED that Plaintiff shall have thirty (30) days from the date this Order is entered to either file a completed application to proceed in forma pauperis attaching thereto a copy of his complaint, or pay the filing fee of $400.00. If Plaintiff fails to do so within the time given, Plaintiff's case will be dismissed with prejudice. Signed by Judge Richard F. Boulware, II on 12/9/14. (Copies have been distributed pursuant to the NEF - MMM)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 GEORGE TOLIVER, Plaintiff, 9 10 11 12 v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant. 13 Case No.: 2:14-cv-00906-RFB-GWF ORDER Report & Recommendation of Magistrate Judge George W. Foley, Jr. (ECF No. 4) Motion to Reconsider Order on Application for Leave to Proceed In Forma Pauperis (ECF No. 6) 14 15 Before the Court for consideration are the Report and Recommendation of the Honorable 16 George W. Foley, Jr., United States Magistrate Judge, entered July 25, 2014 (ECF No. 4), and 17 Plaintiff’s Motion to Reconsider this Court’s Order denying leave to proceed in forma pauperis 18 (ECF No. 6). 19 In an Order entered June 18, 2014, this Court denied Plaintiff’s application for leave to 20 proceed in forma pauperis and ordered that Plaintiff would have thirty days to either file a 21 completed application or pay the filing fee. ECF No. 3. On July 25, 2014, the Magistrate Judge 22 issued a Report and Recommendation in which he found that Plaintiff had not complied with the 23 Court’s order and recommended that Plaintiff’s case be dismissed with prejudice. ECF No. 4. 24 A district court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A party may file 1 specific written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. 2 § 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is 3 required to “make a de novo determination of those portions of the report or specified proposed 4 findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local 5 Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct 6 “any review,” de novo or otherwise, of the report and recommendations of a magistrate judge. 7 Thomas v. Arn, 474 U.S. 140, 149 (1985). 8 Pursuant to Local Rule IB 3-2(a), objections were due by August 11, 2014. No objections 9 were filed by that time. However, on August 12, 2014—one day after the deadline for filing 10 objections—Plaintiff filed a motion for this Court to reconsider its Order denying Plaintiff’s 11 application to proceed in forma pauperis. See ECF No. 6. In his motion, Plaintiff provides 12 evidence that he was incarcerated from June 11, 2014 until July 28, 2014, which caused him to 13 miss the August 11 deadline. Id. 14 Although Plaintiff’s motion is labeled as one for reconsideration, the Court is not bound 15 by a motion’s label; “[t]he substance of the motion, not its form, controls its disposition.” 16 Andersen v. United States, 298 F.3d 804, 807 (9th Cir. 2002). Here, Plaintiff seeks 17 reconsideration of the Court’s decision to deny leave to proceed in forma pauperis, but also states 18 a reason, supported by documentation, why he was unable to comply with the August 11 19 deadline for objections to the Report and Recommendation. See ECF No. 6. Accordingly, the 20 Court construes Plaintiff’s motion as an untimely objection to the Report and Recommendation 21 coupled with a request for an extension of time to file that objection. 22 Turning first to the request for extension of time, the Local Rules of Civil Practice for the 23 District of Nevada state such requests that are “made after the expiration of the specified period 24 shall not be granted unless the moving party . . . demonstrates that the failure to act was the result 25 of excusable neglect.” LR 6-1(b). In this case, the Court finds that the newly proffered evidence 1 contained in Plaintiff’s motion, showing that Plaintiff was incarcerated for the first three days of 2 the time period given to file his objection to the Report and Recommendation, constitutes 3 excusable neglect. This is particularly so in light of the fact that Plaintiff’s motion was filed just 4 one day after the deadline. The Court therefore grants Plaintiff’s request to file an objection after 5 the expiration of the 14-day period for doing so. 6 Given that Plaintiff has filed an objection, the Court engages in a de novo review of the 7 Report and Recommendation. Plaintiff’s documentation shows that he was already incarcerated 8 at the time that the Court denied his application for leave to proceed in forma pauperis without 9 prejudice on June 18, 2014. Plaintiff was given thirty (30) days to file an amended application or 10 to pay the filing fee. However, Plaintiff was incarcerated for that entire 30-day period, and was 11 not released until July 28, 2014—ten days after the 30-day deadline expired. 12 “As long as a district court has jurisdiction over the case, then it possesses the inherent 13 procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to 14 be sufficient.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 15 (9th Cir. 2001) (citations omitted) (internal quotation marks omitted). The Court finds that 16 Plaintiff’s incarceration from June 11, 2014 until July 28, 2014 constitutes good cause to extend 17 Plaintiff’s deadline to either file a completed application to proceed in forma pauperis or pay the 18 filing fee, as stated in the June 18 Order. ORDER 19 20 Accordingly, 21 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 4) is 22 rejected. 23 IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration (ECF No. 6) is 24 construed in the Court’s discretion as an untimely objection to the Report and Recommendation 25 1 coupled with a request for an extension of time to file that objection, and that Plaintiff’s request 2 to file the untimely objection is granted. 3 IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days from the date this 4 Order is entered to either file a completed application to proceed in forma pauperis attaching 5 thereto a copy of his complaint, or pay the filing fee of $400.00. If Plaintiff fails to do so within 6 the time given, Plaintiff’s case will be dismissed with prejudice. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED this 9th day of December, 2014. ________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?