Martinez v. Las Vegas Metropolitan Police Department et al

Filing 20

ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; the Court's Report and Recommendation, Docket No. 13 is WITHDRAWN; Clerk is INSTRUCTED to file the second amended complaint, Docket No. 16 -1; the Clerk SH ALL ISSUE summons to Defendant Officer Michael Donovan AND DELIVER THE SAME together with a copy of this order and the second amended complaint to U.S. Marshal for service (e-mail to send to LV requesting distribution on 10/13/2017);Clerk SHALL SEND plaintiff (1) USM-285 forms (mailed to P on 10/13/2017); plaintiff shall have 30 days in which to furnish USM the USM-285 form; within 20 days after receiving from USM a copy of the USM-285 form showing whether service has been acco mplished, plaintiff must file a notice with the court identifying whether defendant was served or not; plaintiff shall serve upon defendant or defendant's counsel a copy of every pleading submitted for consideration, together with a certificate of mailing. Signed by Magistrate Judge Nancy J. Koppe on 10/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MIGUEL A. MARTINEZ,

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Plaintiff,
vs.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,

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Defendants.

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Case No. 2:15-cv-00883-MMD-NJK
ORDER GRANTING MOTION FOR
LEAVE TO FILE SECOND
AMENDED COMPLAINT
(Docket No. 16)

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Pending before the Court is Plaintiff’s motion for leave to file a second amended complaint.

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Docket No. 16. For the reasons discussed more fully below, Plaintiff’s motion is GRANTED.

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I.

STANDARD

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A magistrate judge has the authority to withdraw or amend reports and recommendations to

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address new arguments or evidence offered in objections or responses thereto. Bank of Am., N.A. v. Log

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Cabin Ponderosa Homeowners Ass’n, 2016 U.S. Dist. LEXIS 93938, at *2 (D. Nev. July 19, 2016)

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(citing Frye v. San Quentin State Prison, 2015 U.S. Dist. LEXIS 155477, at *12 (E.D. Cal. Nov. 17,

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2015)).

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II.

FACTUAL BACKGROUND

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Plaintiff is proceeding in this action pro se and in forma pauperis. Docket No. 5. On April 26,

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2016, the Court screened Plaintiff’s complaint and dismissed it with leave to amend. Docket No. 7. On

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June 27, 2016, Plaintiff filed an amended complaint. Docket No. 8. On January 20, 2017, the Court

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screened Plaintiff’s amended complaint. Docket No. 12. The Court found that all of the counts in the

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amended complaint except Count I were deficient. Id. The Court granted Plaintiff leave to file a second

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amended complaint and ordered him to do so no later than February 21, 2017. Id. at 4. The Court found

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that Plaintiff stated a claim upon which relief can be granted for an alleged violation of his Fourth

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Amendment right against excessive force on the basis of a § 1983 claim. Id. at 2. The Court found that

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Plaintiff did not state a claim upon which relief can be granted as to his two other allegations. Id. at 3.

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The order granting Plaintiff leave to file a second amended complaint notified Plaintiff that if he chose

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not to file a second amended complaint by February 21, 2017, the Court would recommend to the

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District Judge that the action proceed on the Fourth Amendment claim against Defendant Officer

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Michael Donovan only. Id. at 5. On June 23, 2017, the Court issued a report and recommendation,

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recommending that this action proceed solely on the claim against Defendant Donovan. Docket No. 13.

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Plaintiff filed his second amended complaint on July 21, 2017, five months past the deadline.

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Docket No. 16. Plaintiff submits that he was unable to meet the deadline because he had been in

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Administrative Segregation, and was “on medication; wasn’t able to function enough to do the

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Complaint.” Id. at 1. Although Plaintiff has not provided the dates during which he was placed in

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segregation, on medication and, therefore, unable to file his second amended complaint by the deadline,

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the Court construes the filings of pro se parties liberally. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th

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Cir. 2010). In this one instance, therefore, the Court finds that good cause exists to withdraw its Report

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and Recommendation. Docket No. 13. The Court further GRANTS Plaintiff’s motion for leave to file

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a second amended complaint. Docket No. 16.

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III.

CONCLUSION

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Accordingly,

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IT IS ORDERED that the Court’s Report and Recommendation, Docket No. 13, is hereby

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WITHDRAWN.

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IT IS FURTHER ORDERED that, for the reasons stated in the Court’s prior screening order,

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Docket No. 12, the one count in Plaintiff’s second amended complaint may proceed. The Clerk’s Office

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is INSTRUCTED to file the second amended complaint, Docket No. 16-1, on the docket.

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IT IS FURTHER ORDERED that the Clerk of Court SHALL ISSUE summons for Defendant

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Officer Michael Donovan AND DELIVER THE SAME to the United States Marshal for service. The

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Clerk SHALL SEND to Plaintiff one (1) USM-285 form. The Clerk also SHALL SEND a copy of the

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second amended complaint (Docket No. 16-1) and a copy of this order to the United States Marshal for

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service on Defendant. Plaintiff shall have thirty (30) days within which to furnish to the United States

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Marshal the required USM-285 form with relevant information as to the Defendant on the form. Within

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twenty (20) days after receiving from the United States Marshal a copy of the USM-285 form showing

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whether service has been accomplished, Plaintiff must file a notice with the Court identifying which

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Defendant(s) were served and which were not served, if any. If Plaintiff wishes to have service again

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attempted on an unserved Defendant, then a motion must be filed with the Court identifying the

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unserved Defendant and specifying a more detailed name and/or address for said Defendant, or whether

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some other manner of service should be attempted.

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IT IS FURTHER ORDERED that, henceforth, Plaintiff shall serve upon Defendant or, if

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appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, motion or other

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document submitted for consideration by the Court. Plaintiff shall include with the original paper

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submitted for filing a certificate stating the date that a true and correct copy of the document was mailed

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to the Defendant or counsel for the Defendant. The Court may disregard any paper received by a district

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judge or magistrate judge which has not been filed with the clerk, and any paper received by a district

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judge, magistrate judge or the clerk which fails to include a certificate of service.

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IT IS SO ORDERED.

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DATED: October 13, 2017.

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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