Turner v. Arresting Officer 5-30-2016 et al

Filing 40

ORDER. IT IS HEREBY ORDERED that 33 Plaintiff John Turner's Motion for Leave to File an Amended Complaint is DENIED without prejudice. Pursuant to the Courts prior rulings, Turner may file a 4th Amended Complaint attempting to cure the defic iencies in Counts II or III previously noted 14 . The 4th Amended Complaint must be filed on or before 8/4/17. IT IS FURTHER ORDERED that if Turner files a 4th Amended Complaint, the Clerk of the Court is directed NOT to issue summons on the 4th Amended Complaint. Signed by Magistrate Judge Cam Ferenbach on 7/3/17. (Copies have been distributed pursuant to the NEF - ADR)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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JOHN TURNER,

Case No. 2:16-cv-02413-RFB-VCF
Plaintiff,

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ORDER

vs.
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MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT (ECF No. 33)

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,
Defendants.

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This matter involves Plaintiff John Turner’s civil-rights action arising from his arrest, detention,

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and court proceedings in Las Vegas, Nevada. Before the Court is Turner’s Motion for Leave to File an

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Amended Complaint (ECF No. 33). Turner’s motion is denied without prejudice because Turner did not

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attach an amended pleading to his motion as required by the local rules of practice for the United States

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District Court for the District of Nevada.

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I. BACKGROUND
Turner originally filed an application to proceed in forma pauperis and complaint in October 2016.
The Honorable Richard F. Boulware II dismissed with prejudice Turner’s claims against Judge Goodman,

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Deputy District Attorney Rinetti, the State of Nevada, and the Nevada Department of Parole and
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Probation. See ECF No. 3 at 2. Turner’s claims against Clark County, the Las Vegas Metropolitan Police
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Department, the Clark County Detention Center, and the Metro Officer were dismissed with leave to

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amend. Id. Turner filed a third amended complaint in February 2017. See ECF No. 8. After screening

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the complaint under 28 U.S.C. § 1915(e)(2), this Court recommended that “Counts II and III of Turner’s

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third amended complaint” be dismissed, but “Count I against Metro Officer John Doe #1, #2, #3, and

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Metro Officer #8376” be allowed to proceed. See ECF No. 14 at 4. Turner did not timely object to the

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undersigned’s report and recommendation. See ECF No. 20 at 1 (“Pursuant to Local Rule IB-3-2(a),
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objections were due by March 28, 2017. No objections have been filed.”). On April 3, 2017, the Honorable

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Richard F. Boulware II issued an order adopting in full the undersigned’s report and recommendation

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concerning Turner’s third amended complaint. See ECF No. 20 at 2. A few days later, Turner filed a

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notice of appeal for that order. See ECF No. 24. The Ninth Circuit Court of Appeals dismissed Turner’s

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appeal for lack of jurisdiction. See ECF No. 32. Now, Turner asks the Court for leave to file an amended

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complaint.

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II. DISCUSSION
As a preliminary matter, the Court recommends that the dismissal of Counts II and III of Turner’s

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third amended complaint should be construed under Fed. R. Civ. P. 60(a) as being without prejudice. The
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previous report and recommendation (ECF No. 14) stated “IT IS RECOMMENDED that Counts II and
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III of Turner’s third amended complaint (ECF No. 8) be DISMISSED.” See ECF No. 14 at 4. Identical
language was used in the order adopting the undersigned’s report and recommendation. See ECF No. 20

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at 2. Under Fed. R. Civ. P. 60(a), a court, on its own initiative, “may correct a clerical mistake or a mistake

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arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.”

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See Fed. R. Civ. P. 60(a); see also 11 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal

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Practice and Procedure, § 2853, 300-301 (3d ed. 2010) (“the correction of clerical mistakes in judgments,

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orders, or other parts of the record as well as the correction of errors arising from oversight or omission

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… is a power that the courts always have had.”).

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In particular, a court may use Rule 60(a) to clarify its intent about whether an order or judgment

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was without or without prejudice. See In re Jee, 799 F.2d 532, 535 (9th Cir. 1986); see also Garamendi
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v. Henin, 683 F.3d 1069, 1079 (9th Cir. 2012) (“Rule 60(a) allows a court to clarify a judgment in order
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to correct a failure to memorialize part of its decision, to reflect the necessary implications of the original
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order, to ensure that the court’s purpose is fully implemented, or to permit enforcement.”); Guerrero Co.
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v. Sealift Pacific, 650 F.2d 1072, 1074 (9th Cir. 1981) (A judge may use Rule 60(a) “to make an order

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reflect the actual intentions of the court, plus necessary implications.”). Turner did not timely object to

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this Court’s report and recommendation. In light of Turner’s pro se status and incarceration, however,

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the dismissal of Counts II and III of Turner’s third amended complaint should be construed as being

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without prejudice. See Rivera v. PNS Stores, Inc., 647 F.3d 188, 194 (5th Cir. 2011), cert. denied, 132 S.

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Ct. 1741, L. Ed. 2d 529 (2012) (“Inadvertently designating a dismissal as being ‘without prejudice’ instead

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of ‘with prejudice’ is the type of rote, typographical error of transcription that could be committed by a

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law clerk or a judicial assistant. It is not an error of judgment or legal reasoning.”); see also 11 Wright et

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al., supra, § 2853, 303-07 (“A great variety of matters have been held by the courts to come within Rule
60(a),” including “clerical errors, the failure to enter judgment or an opposing party’s motion, the omission

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of a filing date, and mathematical computations.”).
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The Court now turns to Turner’s Motion for Leave to File an Amended Complaint. The Court
notes that Turner’s motion is difficult to comprehend due to the style and manner in which it was drafted.

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Nevertheless, the Court discerns the following reasons that Turner seeks leave to amend: (1) to identify

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the names of three John Doe’s in Count 1; and (2) to properly address the deficiencies in Count II and

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Count III, in particular to allege a more robust claim of retaliation that the defendant correctional officers

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have allegedly displayed. See ECF No. 33 at 2.

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Local Rule 15-1(a) states:
Unless the court orders otherwise, the moving party must attach the
proposed amended pleading to a motion seeking leave of the court to file an
amended pleading. The proposed amended pleading must be complete in
and of itself without reference to the superseded pleading and must include
copies of all exhibits referred to in the proposed amended pleading.

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Turner did not attach an amended pleading to his motion for leave to file an amended complaint.
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The Court is unable to screen the amended complaint, as required by federal law. Thus, Turner’s Motion
for Leave to File an Amended Complaint is denied without prejudice.

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ACCORDINGLY, and for good cause shown,

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IT IS HEREBY ORDERED that Plaintiff John Turner’s Motion for Leave to File an Amended

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Complaint (ECF No. 33) is DENIED without prejudice. Pursuant to the Court’s prior rulings, Turner may

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file a 4th Amended Complaint attempting to cure the deficiencies in Counts II or III previously noted

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(ECF No. 14). The 4th Amended Complaint must be filed on or before August 4, 2017. If Turner fails to

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timely file an Amended Complaint that addresses the defects noted, the Court will recommend dismissal
of Counts II and III with prejudice.

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IT IS FURTHER ORDERED that if Turner files a 4th Amended Complaint, the Clerk of the Court
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is directed NOT to issue summons on the 4th Amended Complaint. The Court will issue a screening order
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on the 4th Amended Complaint and address the issuance of Summons at that time, if applicable. See 28
U.S.C. § 1915(e)(2).

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NOTICE

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Pursuant to Local Rules IB 3-1, a party may object to orders issued by the U.S. Magistrate Judge.

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Objections must be in writing and filed with the Clerk of the Court within fourteen days. The Supreme

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Court has held that the courts of appeal may determine that an appeal has been waived due to the failure

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to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also

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held that (1) failure to file objections within the specified time and (2) failure to properly address and brief

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the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues

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from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi

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Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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Under Local Special Rule 2-2, the Plaintiff must immediately file written notification with the
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court of any change of address. The notification must include proof of service upon each opposing party
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of the party’s attorney. Failure to comply with this Rule may result in dismissal of the action. See
LSR 2-2.

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IT IS SO ORDERED.

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DATED this 3rd day of July, 2017.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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