United States District Court, D. Nevada
MIGUEL A. MARTINEZ, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT (Docket No. 16)
J. KOPPE United States Magistrate Judge
before the Court is Plaintiff's motion for leave to file
a second amended complaint. Docket No. 16. For the reasons
discussed more fully below, Plaintiff's motion is
magistrate judge has the authority to withdraw or amend
reports and recommendations to address new arguments or
evidence offered in objections or responses thereto. Bank
of Am., N.A. v. Log Cabin Ponderosa Homeowners
Ass'n, 2016 U.S. Dist. LEXIS 93938, at *2 (D. Nev.
July 19, 2016) (citing Frye v. San Quentin State
Prison, 2015 U.S. Dist. LEXIS 155477, at *12 (E.D. Cal.
Nov. 17, 2015)).
is proceeding in this action pro se and in forma
pauperis. Docket No. 5. On April 26, 2016, the Court
screened Plaintiff's complaint and dismissed it with
leave to amend. Docket No. 7. On June 27, 2016, Plaintiff
filed an amended complaint. Docket No. 8. On January 20,
2017, the Court screened Plaintiff's amended complaint.
Docket No. 12. The Court found that all of the counts in the
amended complaint except Count I were deficient. Id.
The Court granted Plaintiff leave to file a second amended
complaint and ordered him to do so no later than February 21,
2017. Id. at 4. The Court found that Plaintiff
stated a claim upon which relief can be granted for an
alleged violation of his Fourth Amendment right against
excessive force on the basis of a § 1983 claim.
Id. at 2. The Court found that Plaintiff did not
state a claim upon which relief can be granted as to his two
other allegations. Id. at 3. The order granting
Plaintiff leave to file a second amended complaint notified
Plaintiff that if he chose not to file a second amended
complaint by February 21, 2017, the Court would recommend to
the District Judge that the action proceed on the Fourth
Amendment claim against Defendant Officer Michael Donovan
only. Id. at 5. On June 23, 2017, the Court issued a
report and recommendation, recommending that this action
proceed solely on the claim against Defendant Donovan. Docket
filed his second amended complaint on July 21, 2017, five
months past the deadline. Docket No. 16. Plaintiff submits
that he was unable to meet the deadline because he had been
in Administrative Segregation, and was “on medication;
wasn't able to function enough to do the
Complaint.” Id. at 1. Although Plaintiff has
not provided the dates during which he was placed in
segregation, on medication and, therefore, unable to file his
second amended complaint by the deadline, the Court construes
the filings of pro se parties liberally. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010).
In this one instance, therefore, the Court finds that good
cause exists to withdraw its Report and Recommendation.
Docket No. 13. The Court further GRANTS
Plaintiff's motion for leave to file a second amended
complaint. Docket No. 16.
IT IS ORDERED that the Court's Report
and Recommendation, Docket No. 13, is hereby
IS FURTHER ORDERED that, for the reasons stated in
the Court's prior screening order, Docket No. 12, the one
count in Plaintiff's second amended complaint may
proceed. The Clerk's Office is
INSTRUCTED to file the second amended
complaint, Docket No. 16-1, on the docket.
IS FURTHER ORDERED that the Clerk of Court
SHALL ISSUE summons for Defendant Officer
Michael Donovan AND DELIVER THE SAME to the
United States Marshal for service. The Clerk SHALL
SEND to Plaintiff one (1) USM-285 form. The Clerk
also SHALL SEND a copy of the second amended
complaint (Docket No. 16-1) and a copy of this order to the
United States Marshal for service on Defendant. Plaintiff
shall have thirty (30) days within which to furnish to the
United States Marshal the required USM-285 form with relevant
information as to the Defendant on the form. Within twenty
(20) days after receiving from the United States Marshal a
copy of the USM-285 form showing whether service has been
accomplished, Plaintiff must file a notice with the Court
identifying which Defendant(s) were served and which were not
served, if any. If Plaintiff wishes to have service again
attempted on an unserved Defendant, then a motion must be
filed with the Court identifying the unserved Defendant and
specifying a more detailed name and/or address for said
Defendant, or whether some other manner of service should be
IS FURTHER ORDERED that, henceforth, Plaintiff shall
serve upon Defendant or, if appearance has been entered by
counsel, upon the attorney(s), a copy of every pleading,
motion or other document submitted for consideration by the
Court. Plaintiff shall include with the original paper
submitted for filing a certificate stating the date that a
true and correct copy of the document was mailed to the
Defendant or counsel for the Defendant. The Court may
disregard any paper received by a district judge or
magistrate judge which has not ...