Burks v. Nevada H.A.N.D., Inc.

Filing 17

ORDER. IT IS HEREBY ORDERED that 14 Plaintiff's Motion for Review is DENIED. IT IS FURTHER ORDERED that 16 Plaintiff's Motion for Recusal of Judge is DENIED. IT IS FURTHER ORDERED that Plaintiff SHALL mail to USM a completed USM 285 form for service on Defendant no later than 12/4/2020. See Order for further details/deadlines. Signed by Magistrate Judge Elayna J. Youchah on 11/17/2020. (Copies have been distributed pursuant to the NEF - cc: USM - MR)

Case 2:19-cv-02170-KJD-EJY Document 17 Filed 11/17/20 Page 1 of 6

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TONYA K. BURKS,

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Case No.: 2:19-cv-02170-KJD-EJY

Plaintiff,
ORDER

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v.

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NEVADA H.A.N.D., INC.,

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Defendant.

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Presently before the Court is pro se Plaintiff’s Motion for Review (ECF No. 14) and Motion

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for Recusal of Judge. ECF No. 16. The Court finds as follows.

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I.

BACKGROUND

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Plaintiff initiated this action in December 2019 by filing an Application to Proceed In Forma

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Pauperis (ECF No. 1), attached to which was a Complaint. ECF No. 1-1. Before that Complaint

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was screened, Plaintiff filed a second Application to Proceed In Forma Pauperis (ECF No. 7),

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attached to which was an Amended Complaint. ECF No. 7-1.

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On March 24, 2020, the Court issued its first Order and Report and Recommendation, finding

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Plaintiff stated sufficient facts to allege Fair Housing Act (the “FHA”) claims under a failure to

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accommodate disability theory, and under the disparate treatment theory based on race

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discrimination. ECF No. 8 at 7. The Court ordered the Clerk of the Court to send Plaintiff the USM

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285 form, and instructed Plaintiff to complete and return the USM 285 form to the U.S. Marshal for

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service. Id. The Court also dismissed Plaintiff’s Amended Complaint without prejudice with leave

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to amend as to Plaintiff’s FHA claim under the disparate treatment theory based on disability

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discrimination, and recommended that Plaintiff’s claim under the Americans with Disabilities Act

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be dismissed with prejudice as amendment would be futile. Id. at 8. The Court permitted Plaintiff

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to file a second amended complaint within thirty days of its Order and Report and Recommendation

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if she so desired. Id. Thereafter, Plaintiff untimely filed a Motion for Leave to File Second Amended

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Complaint. ECF No. 11.
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Case 2:19-cv-02170-KJD-EJY Document 17 Filed 11/17/20 Page 2 of 6

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On August 18, 2020, the Court issued its second Order and Report and Recommendation on

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Plaintiff’s proposed second amended complaint. ECF No. 12. The Court found Plaintiff failed to

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allege sufficient facts to demonstrate that she suffers from a disability as defined by the Fair Housing

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Amendments Act, a necessary element of an FHA claim under the failure to accommodate disability

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theory. Id. at 2, citing Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (internal

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citation omitted). Plaintiff also failed to “allege facts demonstrating any direct or circumstantial

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evidence that Defendant more likely than not discriminated against her on the basis of her race or

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disability, a requisite element of a disparate treatment FHA claim.” Id., citing Harris v. Itzhaki, 183

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F.3d 1043, 1051 (9th Cir. 1999). Although the Court recommended Plaintiff’s proposed second

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amended complaint be dismissed for failure to state claims upon which relief may be granted, the

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Court also recommended that Plaintiff’s Amended Complaint remain as the operative complaint. Id.

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at 2 and 4. In addition, the Court noted that “[t]o date, there is no indication … whether the USM

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285 was returned by Plaintiff and, if so, any attempt to serve Defendant was made by the U.S.

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Marshal.” Id. at 3. To that end, the Court instructed the U.S. Marshal to advise whether the USM

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285 form was received from Plaintiff and, if so, whether service was attempted. Id. The same day,

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the U.S. Marshal filed the summons returned unexecuted, indicating “no USM 285 [was] received

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for service.” ECF No. 13 at 2 (internal alterations omitted).

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II.

DISCUSSION

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A.

Plaintiff’s Motion for Review (ECF No. 14) is Denied.

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Plaintiff requests that the Court review her proposed second amended complaint again. ECF

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No. 14 at 1. Liberally construed, Plaintiff’s Motion asks for reconsideration of a prior order.

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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, .

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. . and . . . must be held to less stringent standards than formal pleadings drafted by lawyers.”)

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(internal citation and quotation marks omitted). Generally, a “motion for reconsideration should not

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be granted, absent highly unusual circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.

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2003). The Ninth Circuit limits the grounds for reconsideration into three primary categories

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including: (1) when there is newly discovered evidence; (2) where there is a need to correct clear

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error or prevent manifest injustice; or, (3) when an intervening change in controlling law requires
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Case 2:19-cv-02170-KJD-EJY Document 17 Filed 11/17/20 Page 3 of 6

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review and potential revision to a prior order. Zimmerman v. City of Oakland, 255 F.3d 734, 740

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(9th Cir. 2001). Plaintiff does not discuss or cite to the grounds for reconsideration, and the Court

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has the authority to deny Plaintiff’s Motion for Review on this basis alone. Backlund v. Barnhart,

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778 F.2d 1386, 1388 (9th Cir. 1985). However, acknowledging that Plaintiff is proceeding pro se,

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the Court addresses the contentions she raises in her Motion.

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Plaintiff claims it is not her fault that Las Vegas was “closed down due to the COVID[-]19”

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pandemic and, therefore, the Court should not have dismissed her untimely Motion for Leave to File

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Second Amended Complaint as futile. ECF No. 14 at 1. Plaintiff misunderstands the Court’s second

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Order and Report and Recommendation. In fact, the Court acknowledged that although Plaintiff’s

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Motion to Amend was untimely, the Court would screen the proposed Second Amended Complaint.

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Id. at 1. The Court did screen Plaintiff’s proposed Second Amended Complaint and recommended

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dismissal because Plaintiff failed to allege sufficient facts to state FHA accommodation and disparate

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treatment claims, not on the basis of timeliness. ECF No. 12 at 2.

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Plaintiff also questions why the undersigned allegedly barred her claims from proceeding

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against Defendant Nevada H.A.N.D., Inc. in this action, but permitted Plaintiff’s housing

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discrimination claim to proceed against non-party Westland Hacienda Hills, LLC (“Westland”) in

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another case Plaintiff filed in this District. ECF No. 14 at 2-3, citing Case No. 2:19-cv-02168-RFB-

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DJA.

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Recommendations.

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proceeding against Nevada H.A.N.D., Inc. in its entirety. To the contrary, the Court ordered that

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“Plaintiff’s Amended Complaint shall proceed as stated against Defendant [Nevada H.A.N.D] based

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on alleged violations of the Fair Housing Act under the failure to accommodate her disability theory

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and the disparate treatment theory based on race discrimination.” ECF No. 8 at 7 (internal alteration

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omitted). As for Plaintiff’s claim against Westland, the undersigned is not a judge assigned to that

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case and must evaluate Plaintiff’s claims against Nevada H.A.N.D. based on the factual allegations

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she alleges in the complaint or subsequent amended complaints she files in this action.

Plaintiff again misunderstands the Court’s previous Orders and Reports and
The Court did not bar Plaintiff’s operative Amended Complaint from

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Here, Plaintiff named Nevada H.A.N.D., Inc. as a Defendant, and the Court has properly

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screened the Amended Complaint and proposed Second Amended Complaint that Plaintiff filed.
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The screening provided the Court’s reasons for recommending dismissal of Plaintiff’s proposed

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Second Amended Complaint while also recommending the Amended Complaint proceed as

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previously ordered. There was no error of law or fact in the Court’s determinations, there was no

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intervening change in the law, and Plaintiff presents no newly discovered evidence. For these

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reasons, the Court denies Plaintiff’s Motion for Review.

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B.

Plaintiff’s Motion for Recusal of Judge (ECF No. 16) is Denied.

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“Whenever a party to any proceeding in a district court makes and files a timely and sufficient

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affidavit that the judge before whom the matter is pending has a personal bias or prejudice either

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against him or in favor of any adverse party, such judge shall proceed no further therein, but another

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judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144. The legal sufficiency of a motion

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for recusal is determined by the judge against whom recusal is sought. U.S. v. Azhocar, 581 F.2d

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735, 738 (9th Cir. 1978). Only after the legal sufficiency of the required affidavit is determined does

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it become the duty of the judge to “proceed no further” in the case. Id. (internal citations omitted).

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The affidavit must “state facts and reasons which tend to show personal bias and prejudice regarding

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justiciable matter[s] pending and must give support to the charge of a bent of mind that may prevent

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or impede impartiality of judgment.” Hussein v. Univ. and Cmty. Coll. Sys. of Nev., Case Nos. 3:04-

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CV-0455 JCM (GWF), 3:05-CV-0076 JCM (GWF), 2010 WL 3385298, at *1 (D. Nev. Aug. 24,

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2010), citing Berger v. U.S., 255 U.S. 22, 33 (1921). Further, the facts alleged must be “sufficient

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to convince a reasonable man” of the judge’s actual bias or prejudice. Curry v. Jensen, 523 F.2d

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387, 388 (9th Cir. 1975). Here, Plaintiff has not submitted the required affidavit of prejudice and,

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therefore, any request for recusal is improper. Cf. U.S. v. Perry, Case No. CR-LV-118-HDM, 1990

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WL 43730, at *2 (D. Nev. Feb. 12, 1990) (“The court concludes, on the basis of the information

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provided to the court . . . in his motion and accompanying affidavit, that he has failed to set forth a

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basis for concluding that there is a statutory bias on the part of the undersigned against the movant”).

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Nonetheless, the Court reviews Plaintiff’s representations in her Motion for Recusal given

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Plaintiff’s pro se status. Plaintiff requests the undersigned be removed as a judge in this case, as

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well as from the other action that she filed in this District Court. ECF No. 16 at 1; see also Case No.

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2:19-cv-02168-RFB-DJA.

Plaintiff alleges, in conclusory fashion, that the undersigned has
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Case 2:19-cv-02170-KJD-EJY Document 17 Filed 11/17/20 Page 5 of 6

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“personal connections” with Defendant Nevada H.A.N.D., Inc., and may retaliate against Plaintiff

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in presiding over her two cases. Id. Plaintiff again claims the undersigned unfairly denied her

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Motion for Leave to File Second Amended Complaint because it was “turned in late,” and questions

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why her other case was permitted to proceed. Id. However, as stated above, Plaintiff’s Motion for

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Leave to File was not denied because it was untimely, but because it failed to provide sufficient fact

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upon which to state FHA claims under the failure to accommodate and disparate treatment theories

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asserted. ECF No. 12 at 2. Moreover, the undersigned is not a judge assigned to Plaintiff’s other

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pending case apparently concerning a different defendant.
Because Plaintiff fails to provide the Court with any legally sufficient basis requiring recusal,

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her Motion seeking this result is denied.

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C.

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Plaintiff has Failed to Provide the USM 285 Form to the U.S. Marshal,
Precluding Service on Defendant.

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The U.S. Marshal for the District of Nevada advises the Court that Plaintiff never returned a

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completed USM 285 form and, therefore, service was not attempted on Defendant. ECF No. 13 at

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2. In her filings, Plaintiff represents that “the paperwork for the U.S. Marshal[] . . . wasn’t mailed

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to [her],” but she then states that she “had to wait until the courts opened up and the [Clerk of the

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Court] gave [her] 9 [copies] just in case.” ECF No. 14 at 7. Thus, Plaintiff apparently did receive

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the USM 285 forms she was required to complete and return to the U.S. Marshal for purposes of

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accomplishing service on Defendant. 1

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III.

ORDER

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Review (ECF No. 14) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Recusal of Judge (ECF No. 16) is

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DENIED.

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IT IS FURTHER ORDERED that Plaintiff SHALL mail to the U.S. Marshal for the District

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of Nevada a completed USM 285 form for service on Defendant Nevada H.A.N.D. no later than

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December 4, 2020. The address for mailing is:

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The USM-285 form is also available at www.usmarshals.gov/process/usm285.pdf.
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Case 2:19-cv-02170-KJD-EJY Document 17 Filed 11/17/20 Page 6 of 6

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Gary Schofield
U.S. Marshal
333 Las Vegas Blvd South
Suite 2085
Las Vegas, Nevada 89101.

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Upon receipt of the USM 285 form, the U.S. Marshal is instructed to attempt service on Defendant

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Nevada H.A.N.D., Inc.

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IT IS FURTHER ORDERED that within twenty (20) days after receiving a copy of the Form

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USM-285 from the U.S. Marshal showing whether service has been accomplished, Plaintiff shall

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file a notice with the Court identifying whether Defendant was served.

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IT IS FURTHER ORDERED that Plaintiff’s failure to comply with the terms of this Order
shall result in a recommendation to the District Judge that this action be dismissed.
DATED this 17th day of November, 2020.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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