Proctor v. Van Horn et al

Filing 61

ORDER granting 60 motion for reconsideration. The 56 Order is amended as follows (see order for details). If Plaintiff chooses to refile his motion to amend, he must do so on or before 2/10/2014. Signed by Magistrate Judge William G. Cobb on 01/14/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES JUAN PROCTOR,

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Plaintiff,
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vs.
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DR. VAN HORN, et al.,
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Defendant(s).
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______________________________________)

3:12-cv-00328-MMD-WGC
ORDER

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Before the court is Defendants’ Motion for Reconsideration of the Court’s Order re Plaintiff’s

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Motion for Leave to Amend. (Doc. # 60.)1 On December 18, 2013, Plaintiff filed a motion to amend his

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complaint to add Northern Nevada Correctional Center Director of Nursing Terri Jacobs as a party

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Defendant. (Doc. # 49.)2 The court denied Plaintiff’s motion because the motion to amend was not

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accompanied by a proposed amended complaint as is required by Local Rule 15-1. (Doc. # 56.)

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However, the court’s order did allow Plaintiff leave to file an amended complaint. (Id.)

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The court’s order was in error. What the court’s order should have stated was that Plaintiff was

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permitted to re-file his motion for leave to file an amended complaint if such motion was accompanied

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by a proposed amended complaint which is complete in itself without reference to any prior pleading.

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The court did not mean to grant Plaintiff leave to file an amended complaint which included Ms. Jacobs

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as a party defendant.

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Refers to court’s docket number.

The court inadvertently overlooked Defendants’ opposition to Plaintiff’s motion (Doc. # 55) which was filed
December 31, 2013, prior to entering its order (Doc. # 56) on January 10, 2014.

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After a motion for leave to amend, accompanied by a proposed amended complaint, has been

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filed, the Defendants may re-file their opposition (Doc. # 55) and Plaintiff may submit a reply

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memorandum.

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The court notes Defendants’ opposition (Doc. # 55) is based on the argument Plaintiff’s

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characterization in his motion of the involvement of Ms. Jacobs failed to establish a constitutional claim.

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While in retrospect the court recognizes there very well may be a futility in any proposed amended

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complaint the Plaintiff may file with respect to Ms. Jacobs, the court cannot make that determination

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until the court has had an opportunity to review the specific allegations Plaintiff might aver in his

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proposed complaint.

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Now, therefore, it is hereby ordered as follows:

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Defendant’s motion for reconsideration (Doc. # 60) is GRANTED.

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2.

This court’s order (Doc. # 56) is AMENDED as follows:

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(a) Plaintiff may refile a motion for leave to amend his complaint to assert a cause of action

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against Terri Jacobs. Plaintiff’s motion, if any, must be accompanied by a proposed amended complaint

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that is complete in and of itself without reference to any prior pleading. If Plaintiff chooses to refile his

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motion to amend, he must do so on or before February 10, 2014.

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(b) If Plaintiff re-files a motion for leave to amend, Defendants may advise the court their

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opposition is predicated upon their memorandum of December 31, 2013 (Doc. # 55) or Defendants may

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submit a new memorandum. Defendant’s response, in whatever form, is due fourteen (14) days after

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service of Plaintiff’s motion. Plaintiff shall have until seven (7) days after service of Defendants’

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opposition to file his reply memorandum, if any.

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IT IS SO ORDERED.

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DATED: January 14, 2014.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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