Kinford v. Pincock et al

Filing 52

ORDER indicating that the Court would grant ECF No. 51 Motion for Relief from Judgment if the Court of Appeals were to remand for that purpose. Signed by Judge Robert C. Jones on 2/17/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 10 STEVEN KINFORD, 11 12 Plaintiff, vs. 13 14 15 JAMES PINCOCK et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) 3:15-cv-00512-RCJ-WGC ORDER 16 17 Plaintiff sued Defendants in state court alleging deliberate indifference under the Eighth 18 19 Amendment pursuant to 42 U.S.C. § 1983 and state negligence law based on allegedly defective 20 facial reconstruction surgery. Defendants removed. The Court granted Defendants’ motion to 21 dismiss at the recommendation of the Magistrate Judge. The Magistrate Judge had 22 recommended dismissal of the action with prejudice but also recommended keeping the case 23 open to give Plaintiff an opportunity to amend to make allegations of unlawful retaliation against 24 25 two new defendants. The Court nominally adopted the report and recommendation in full but in 26 substance rejected it in part, ordering the Clerk to close the case. 27 28 1 1 Plaintiff has now asked the Court to clarify the procedural posture of the case. The Court 2 interprets the motion as a motion for relief from judgment under Rule 60(a). The Court has lost 3 jurisdiction to the Court of Appeals, however, and can only make an indicative ruling under Rule 4 62.1. If the Court of Appeals were to remand for the limited purpose of ruling on the present 5 motion, the Court would rule that it made an oversight as contemplated under Rule 60(a) when it 6 7 8 dismissed without leave to amend to make allegations of unlawful retaliation against the two proposed defendants. 9 10 CONCLUSION IT IS HEREBY INDICATED that the Court WOULD GRANT the Motion for Relief 11 from Judgment (ECF No. 51) if the Court of Appeals were to remand for that purpose. 12 13 14 IT IS SO ORDERED. DATED: 6th 17th day of February, 2017. Dated thisThisday of February, 2017. 15 16 17 18 _____________________________________ ROBERT C. JONES United States District Judge 19 20 21 22 23 24 25 26 27 28 2

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