Heyman v. State of Nevada ex rel Board of Regents for the Nevada System of Higher Education et al

Filing 311

ORDER. IT IS ORDERED that 269 Plaintiff's Emergency Objection/Appeal of Magistrate Judge Order is DENIED. IT IS FURTHER ORDERED that 310 Plaintiff's Emergency Objection/Appeal of Magistrate Judge Order is DENIED. Signed by Judge Richard F. Boulware, II on 2/14/2018. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

DARREN HEYMAN,

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff,

Case No. 2:15-cv-01228-RFB-GWF
ORDER

v.
THE STATE OF NEVADA EX REL.
BOARD OF REGENTS FOR THE NEVADA
SYSTEM OF HIGHER EDUCATION ON
BEHALF OF THE UNIVERSITY OF
NEVADA, LAS VEGAS; NEAL
SMATRESK; DONALD SNYDER; STOWE
SHOEMAKER, RHONDA
MONTGOMERY; CURTIS LOVE; SARAH
TANFORD; PHILLIP BURNS; KRISTEN
MALEK; LISA MOLL-CAIN; DEBRA
PIERUSCHKA; ELSA SIDHU AND DOES I
- X INCLUSIVE,
Defendants.
Before the Court comes Plaintiff Darren Heyman (“Plaintiff”)’s Emergency
Objection/Appeal of Magistrate Judge Order, (ECF No. 269), and Plaintiff’s Emergency
Objection/Appeal of Magistrate Judge Order, (ECF No. 310). For the reasons stated below,
Plaintiff’s motions are DENIED.
The Court may reconsider pretrial matters decided by a magistrate judge only if it has been
established that the magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. §
636(b)(1)(A); LR IB 3-1. This standard is deferential. The reviewing court “must ask whether, on
the entire evidence, it is left with the definite and firm conviction that a mistake has been
committed.” In re Optical Disk Drive Antitrust Litig., 801 F.3d 1072, 1076 (9th Cir. 2015)
(citations and quotation marks omitted). “A finding is clearly erroneous if it is (1) illogical, (2)
implausible, or (3) without support in inferences that may be drawn from the facts in the record.”

1

Ibrahim v. U.S. Dep’t of Homeland Sec., 835 F.3d 1048, 1058 (9th Cir. 2016) (citation and

2

quotation marks omitted). Under the contrary to law standard “[t]he reviewing court may not

3

simply substitute its judgment for that of the deciding court.” Grimes v. City and Cty. of San

4

Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citation omitted).

5

Plaintiff requests emergency reconsideration of the Magistrate Judge’s order, (ECF No.

6

267), regarding Plaintiff’s prior Emergency Motion to Stay Proceedings, Extend Discovery

7

Deadlines for Plaintiff, Leave to Amend the Complaint to Name Defendant Doe I, and Postpone

8

Remaining Scheduled Depositions, (ECF No. 262). The Court has reviewed the Magistrate Judge’s

9

order, and finds that the order is neither clearly erroneous nor contrary to law. The Court has

10

additionally reviewed the underlying Motion (ECF No. 262) and finds no basis for Plaintiff’s

11

arguments.

12

Plaintiff also requests emergency reconsideration of the Magistrate Judge’s order, (ECF

13

No. 305), regarding Plaintiff’s prior Emergency Motion for Recusal of Magistrate Judge, (ECF

14

No. 270). The Court has reviewed the order and the underlying Motion. The Court recognizes that

15

Plaintiff has filed a Motion pursuant to 28 U.S.C. 144 and 28 U.S.C. § 455, and that the Motion

16

includes a Section 144 Affidavit stating the alleged grounds for recusal. However, Plaintiff’s

17

Affidavit is not legally sufficient as required by Section 144 and United States v. Sibla, 624 F.2d

18

864, 867-68 (9th Cir. 1980). “An affidavit filed pursuant to [Section 144] is not legally sufficient

19

unless it specifically alleges facts that fairly support the contention that the judge exhibits bias or

20

prejudice directed toward a party that stems from an extrajudicial source.” Sibla, 624 F.2d at 868

21

(citations omitted). The allegations set forth in the affidavit are largely speculative, and are

22

Plaintiff’s characterizations of Judge Foley’s motivations for ruling. The only fact Plaintiff asserts

23

is that Judge Foley attended UNLV, which alone is not grounds for recusal. The Court therefore

24

finds no clear error in the Magistrate Judge’s order.

25

///

26

///

27

///

28

///

-2-

1

Accordingly,

2

IT IS ORDERED that Plaintiff’s Emergency Objection/Appeal of Magistrate Judge

3
4
5

Order, (ECF No. 269), is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Emergency Objection/Appeal of Magistrate
Judge Order, (ECF No. 310), is DENIED.

6
7

DATED: February 14, 2018.

8

__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-