Brooks v. Gedney et al

Filing 29

ORDER DENYING Plaintiff's 25 Motion to Vacate. Signed by Chief Judge Robert C. Jones on 04/05/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STANLEY W. BROOKS,

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Plaintiff,

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vs.
KAREN GEDNEY et al.,

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Defendants.

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3:10-cv-00481-RCJ-VPC
ORDER

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This is a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff brought the action while

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incarcerated with the Nevada Department of Corrections (“NDOC”), but he has since been paroled.

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On January 31, 2012, the Court adopted the Magistrate Judge’s Report and Recommendation

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(“R&R”) (ECF No. 19) to dismiss count one of the Amended Complaint (“AC”) (ECF No. 8) with

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prejudice under the statute of limitations and to dismiss the second through fourth counts for failure

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to exhaust administrative remedies, i.e., the prison grievance system. (See Order, ECF No. 20). As

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the Court noted in that order, Plaintiff had not objected to the R&R. On February 11, 2013, over

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one year later, Plaintiff filed the present Motion to Vacate Order (ECF No. 25), arguing that he

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never received notice of Defendants’ Motion to Dismiss (ECF No. 15). The record, however,

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indicates the issuance of a Klingele notice, as well as a later minute order by the magistrate judge

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extending time sua sponte and noting the issuance of the Klingele notice. (See Min. Orders, ECF

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Nos. 16, 18).

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The record indicates Plaintiff changed his address several times after being paroled, but all

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indications are that he in fact received the motion. On January 31, 2011, copies of the AC and

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screening order were returned to the Clerk after having been sent to Plaintiff’s previous prison

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address at Northern Nevada Correctional Center (“NNCC”), indicating that he had been paroled.

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(See ECF No. 10). On February 7, 2011, Plaintiff notified the Court of his new address at 3025 N.

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Carroll St., North Las Vegas, NV. 89030, to which new copies of the AC and screening order were

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then sent. (ECF No. 11). All filings were then sent to this address, and the next letter to be returned

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as undeliverable (on February 13, 2012) was not the motion to dismiss, the Klingele order

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concerning that motion, or the magistrate judge’s minute order extending time to respond—none of

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which were returned as undeliverable—but the Court’s order adopting the R&R. (See ECF No. 21).

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Plaintiff then requested a status update on his case via letter on August 28, 2012. (See ECF No. 22).

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That letter indicated the address 2201 N. Buffalo Dr. #1023, Las Vegas, NV 89128 in the header,

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but Plaintiff did not inform the Court that his address had changed until February 11, 2013, when he

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notified the Court that his address had changed to 27 N. 28th St., Las Vegas, NV 89101. (See ECF

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No. 24). He filed the present motion the same day.

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The Court denies the motion. All indications are that Plaintiff in fact received notice, or at

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the very least that the Clerk’s routine efforts here were reasonably calculated to give notice and that

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there were no indications of a failure of notice of the motion to dismiss. Plaintiff argues excusable

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neglect, i.e., that his blindness and lack of legal training caused him not to update his address with

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the Court. Such neglect is not excusable, but even if it were, the motion under Rule 60(b)(1) would

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be untimely. See Fed. R. Civ. P. 60(c)(1).

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Vacate (ECF No. 25) is DENIED.

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IT IS SO ORDERED.

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Datedthis 20th day of March, 2013.
Dated this 5th day of April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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