Hamer v. State of Nevada Bureau of Vocational Rehabilitation Employment and Training

Filing 15

ORDER the Court's Order Adopting Report and Recommendation (ECF No. 7 ) is VACATED. FURTHER ORDERED that the Clerk's Judgment (ECF No. 8 ) is VACATED. Accordingly, the Clerk shall enter an amended judgment dismissing Plaintiff's ra cial discrimination claim against NBVR pursuant to 42 U.S.C. § 1983 with prejudice. Moreover, Defendant NDALC shall be reinstated as a party in this case. FURTHER ORDERED that Plaintiff shall have forty-five (45) days from the date that this O rder is entered to file his second amended complaint. Failure to comply with this Order will result in this claim being dismissed with prejudice. FURTHER ORDERED that Plaintiff shall have forty-five (45) days from the date that this Order is entered to update his mailing address with the Court. Failure to do so will result in the dismissal of Plaintiff's action in its entirety. Signed by Chief Judge Gloria M. Navarro on 8/23/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CLARK HAMER,
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)
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Plaintiff,
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vs.
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STATE OF NEVADA BUREAU OF
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VOCATIONAL REHABILITATION
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EMPLOYMENT AND TRAINING and
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NEVADA DISABILITY AND ADVOCACY )
LAW CENTER,
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Defendants.
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)

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Case No.: 2:15-cv-01036-GMN-GWF
ORDER

Pending before the Court is the Objection to Report and Recommendation (ECF No. 10)

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filed by Plaintiff Clark Hamer (“Plaintiff”) after the Court adopted Magistrate Judge George

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Foley’s Report and Recommendation (ECF No. 4). For the reasons discussed below, the Court

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VACATES its Order Adopting Report and Recommendation (ECF No. 7).

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I.

BACKGROUND

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On January 21, 2016, Magistrate Judge George Foley entered an Order granting

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Plaintiff’s Application for Leave to Proceed in forma pauperis (ECF No. 1). (Order 5:25–26,

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ECF No. 4). Additionally, the Order dismissed Plaintiff’s racial discrimination claim against

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Nevada Disability and Advocacy Law Center (“NDALC”) pursuant to 42 U.S.C. § 1983

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without prejudice, granting Plaintiff leave to file a second amended complaint within 30 days of

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the date of the Order to amend the deficient claim. (Id. 6:5–10). Moreover, Judge Foley

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recommended that Plaintiff’s racial discrimination claim against the Nevada Bureau of

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Vocation Rehabilitation (“NBVR”) pursuant to 42 U.S.C. § 1983 be dismissed with prejudice,

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explaining that “[t]he Nevada Bureau of Vocation Rehabilitation is considered an ‘arm of the

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state’ of Nevada and is therefore, immune from suit as states are not persons for purposes of

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§ 1983.” (Id. 7:4–8). However, Judge Foley found that Plaintiff had sufficiently pled a claim

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for Title II discrimination against NBVR. (Id. 5:14–16).

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On February 22, 2016, after the deadline to file a second amended complaint had passed

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and the deadline to file objections to Judge Foley’s Report and Recommendation had passed,

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the Court entered an Order adopting Judge Foley’s Report and Recommendation. (Order, ECF

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No. 7). Specifically, the Court dismissed Plaintiff’s racial discrimination claim against

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NDALC and NBVR pursuant to 42 U.S.C. § 1983 with prejudice. (Id. 1:23–2:2). Shortly

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thereafter, on March 8, 2016, Plaintiff filed a Notice of Appeal. (ECF No. 9). Moreover, the

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following day, Plaintiff filed the instant Objection to Report and Recommendation. (ECF No.

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10).

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Although Plaintiff filed the instant Objection after filing his Notice of Appeal, the Court

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of Appeals for the Ninth Circuit entered an Order explaining that Plaintiff’s Objection “could

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be construed as a timely-filed motion listed in Federal Rule of Appellate Procedure 4(a)(4).”

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(Order at 1, ECF No. 12). Accordingly, the Ninth Circuit held that its appellate proceedings

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“shall be held in abeyance pending the district court’s ruling as to whether appellant’s March 9,

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2016 filing is a motion listed in Federal Rule of Appellate Procedure 4(a)(4) and if so, the

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district court’s resolution of the motion.” (Id. at 1–2). Because the Court construes the instant

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Objection as a Rule 59 or Rule 60 motion, the instant Objection is a motion listed in Federal

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Rule of Appellate Procedure 4(a)(4).

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As a side matter, the Court received notice on February 3, 2016, that Judge Foley’s

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Report and Recommendation, which was mailed to Plaintiff, was returned to the Court as

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undeliverable. (See ECF No. 6). Because no other address was available to the Court and

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Plaintiff did not update his mailing address with the Court, the Court was unable to resend the

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Report and Recommendation. (Id.).

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II.

LEGAL STANDARD

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“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation omitted).

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Reconsideration is appropriate where: (1) the court is presented with newly discovered

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evidence, (2) the court committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law. School Dist. No. 1J, Multnomah County v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). However, a motion for reconsideration is not

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a mechanism for rearguing issues presented in the original filings, Backlund v. Barnhart, 778

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F.2d 1386, 1388 (9th Cir. 1985), or “advancing theories of the case that could have been

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presented earlier, Resolution Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994)

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(footnotes omitted). Thus, Rule 59(e) and 60(b) and are not “intended to give an unhappy

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litigant one additional chance to sway the judge.” Durkin v. Taylor, 444 F. Supp. 879, 889

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(E.D. Va. 1977).

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III.

DISCUSSION

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In the instant Objection, Plaintiff explains that, because he did not receive Judge Foley’s

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Report and Recommendation, he did not have an opportunity to timely object or file his second

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amended complaint. (Objection at 1, ECF No. 10). Moreover, in a separate filing, Plaintiff

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explains that Judge Foley’s Report and Recommendation “was sent to the (wrong address) in a

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different city that I live in, and was returned to Judge’s office on February 3rd 2016. I only

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received a copy after going to the court house.” (Mot. Judicial Review at 2, ECF No. 14).

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Although Plaintiff acknowledges that his address on file with the Court is incorrect, he still has

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not provided the Court with an updated, correct mailing address.

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Local Rule IA 3–1 requires that a “pro se party must immediately file with the court

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written notification of any change of mailing address” and failure to do so “may result in the

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dismissal of the action, entry of default judgment, or other sanctions as deemed appropriate by

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the court.” While the Court sympathizes with Plaintiff’s inability to object to or comply with

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Judge Foley’s Report and Recommendation, it is Plaintiff’s own failure to notify the Court of

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any change of mailing address that caused such inability.

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Because Plaintiff has failed to comply with Local Rule IA 3-1, the Court is within its

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discretion to dismiss Plaintiff’s action in its entirety. However, the Court will provide Plaintiff

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a second opportunity. Although the Court does not find cause to reverse its decision dismissing

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Plaintiff’s racial discrimination claim against NBVR pursuant to 42 U.S.C. § 1983 with

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prejudice, the Court will allow Plaintiff a second chance to file a second amended complaint to

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amend his racial discrimination claim against NDALC pursuant to 42 U.S.C. § 1983 to correct

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the noted deficiencies in Judge Foley’s Report and Recommendation. Plaintiff shall have

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forty-five (45) days from the date that this Order is entered to file his second amended

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complaint. Failure to comply with this Order will result in this claim being dismissed with

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prejudice. Additionally, Plaintiff’s claim for Title II discrimination against NBVR remains ripe

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for adjudication.

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Plaintiff shall pay particular attention to Judge Foley’s instructions as follows:
If Plaintiff elects to proceed in this action by filing a second
amended complaint, he is informed that the Court cannot refer to a
prior pleading in order to make his second amended complaint
complete. Local Rule 15–1 requires that an amended complaint be
complete in itself without reference to any prior pleading. This is
because, as a general rule, an amended complaint supersedes the
original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th
Cir.1967). Once Plaintiff files a second amended complaint, the
amended complaint no longer serves any function in the case.
Therefore, in a second amended complaint, as in an amended
complaint, each claim and the involvement of each defendant must
be sufficiently alleged.

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(Order 5:17–24, ECF No. 4).

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Plaintiff is also ordered to update his mailing address with the Court. Plaintiff shall have

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forty-five (45) days from the date that this Order is entered to update his mailing address with

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the Court. Failure to do so will result in the dismissal of Plaintiff’s action in its entirety.

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Because the Court does not currently have a correct mailing address on file for Plaintiff, the

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Court is doubtful that Plaintiff will receive notice of this Order, which is why the Court is

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giving Plaintiff an extended period to comply.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that the Court’s Order Adopting Report and

Recommendation (ECF No. 7) is VACATED.
IT IS FURTHER ORDERED that the Clerk’s Judgment (ECF No. 8) is VACATED.

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Accordingly, the Clerk shall enter an amended judgment dismissing Plaintiff’s racial

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discrimination claim against NBVR pursuant to 42 U.S.C. § 1983 with prejudice. Moreover,

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Defendant NDALC shall be reinstated as a party in this case.

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IT IS FURTHER ORDERED that Plaintiff shall have forty-five (45) days from the

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date that this Order is entered to file his second amended complaint. Failure to comply with

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this Order will result in this claim being dismissed with prejudice.

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IT IS FURTHER ORDERED that Plaintiff shall have forty-five (45) days from the

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date that this Order is entered to update his mailing address with the Court. Failure to do so

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will result in the dismissal of Plaintiff’s action in its entirety.

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DATED this _____ day of August, 2016.

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___________________________________

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Gloria M. Navarro, Chief Judge
United States District Judge

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