United States District Court, D. Nevada
M. Navarro Chief Judge United States District Court.
before the Court is the Motion for Relief from Judgment, (ECF
No. 10), filed by pro se Plaintiff Bruce Shelton
(“Plaintiff”). For the reasons discussed herein,
Plaintiff's Motion is GRANTED.
10, 2016, Plaintiff, a Nevada state prisoner, filed a civil
rights lawsuit pursuant to 42 U.S.C. § 1983 against
Cliff Bennett (“Bennett”), Zales Jewelry
(“Zales”), and the State of Nevada
“Defendants”). (Compl., ECF No. 1-1). On January
25, 2017, Magistrate Judge George W. Foley issued an Order
and Report and Recommendation in which he recommended that
Plaintiff's claims against Nevada be dismissed with
prejudice for failure to state a claim upon which relief can
be granted. (Order and Report & Recommendation
(“R.&R.”) 6:24-25, ECF No. 6). Additionally,
Judge Foley ordered that Plaintiff's claims against
Bennett and Zales be dismissed without prejudice with leave
to file an amended complaint by February 24, 2017.
(Id. 6:20-22). Pursuant to Local Rule IB 3-2(a),
Plaintiff was given fourteen days to file an objection to the
Report and Recommendation. (Id. 6:27-28). However,
on January 31, 2017, the Order and Report and Recommendation
was returned as undeliverable, (see ECF No. 5),
rendering Plaintiff unable to file objections.
March 30, 2017, the Court adopted in full Judge Foley's
Report and Recommendation. (Order, ECF No. 6). Specifically,
the Court dismissed Plaintiff's claims against Bennett
and Zales without prejudice and dismissed the claims against
Nevada with prejudice. (Id. 1:13-16). Moreover, the
Court noted in its holding that Plaintiff failed to file an
objection. (Id. 1:12-13). On March 31, 2017, the
Clerk of Court entered judgment against Plaintiff pursuant to
this Order. (Clerk's J., ECF No. 7).
April 5, 2017, the Court received Plaintiff's Notice of
Change of Address, (ECF No. 8). The Notice stated that
Plaintiff was transferred from Clark County Detention Center
(“CCDC”) to Northern Nevada Correctional Center
(“NNCC”) in Carson City, Nevada, on March 30,
2017. (Id.); (Mot. for Relief from J. 2:17-19, ECF
No. 10). On April 11, 2017, Plaintiff's mail addressed to
CCDC that included the Order and Report and Recommendation
was again returned as undeliverable. (Mail Returned as
Undeliverable, ECF No. 9).
19, 2017, Plaintiff filed the instant Motion for Relief from
Judgment pursuant to Federal Rule of Civil Procedure
(“FRCP”) 60(b) where Plaintiff explained that he
did not receive the Report and Recommendation in time to file
objections. (Mot. for Relief from J. at 3). However, on
September 28, 2017, Plaintiff submitted an Amended Complaint
against Bennett and Zales for Defamation of Character and
False Information. (Am. Compl., ECF No. 11).
may relieve a party from a final judgment, order, or
proceeding only in the following circumstances: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud; (4) a void judgment; (5) a
satisfied or discharged judgment; or (6) any other reason
justifying relief from the judgment. Backlund v.
Barnhart, 778 F.2d 1386, 1387 (9th Cir. 1985).
“Relief under Rule 60(b)(6) must be requested within a
reasonable time, and is available only under extraordinary
circumstances.” Twentieth Century-Fox Film Corp. v.
Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (internal
citations omitted). A motion for reconsideration must set
forth the following: (1) some valid reason why the court
should revisit its prior order; and (2) facts or law of a
“strongly convincing nature” in support of
reversing the prior decision. Frasure v. United
States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003).
“[A] party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2).
seeks relief from the Court's Order dismissing the case
without prejudice. (Mot. for Relief from J. 3:6-9, ECF No.
10). Specifically, Plaintiff argues that by not being given
an opportunity to object to the Court's Orders, he has
been “greatly prejudiced through no fault of his
own.” (Id. 2:27-28).
the Nevada Local Rules of Practice, “[t]he plaintiff
must immediately file with the court written notification of
any change of address. The notification must include proof of
service on each opposing party or the party's attorney.
Failure to comply with this rule may result in dismissal of
the action with prejudice.” D. Nev. L.R. 2-2. Moreover,
a litigant “moving for relief under Rule 60(b)(6)
‘must demonstrate both injury and circumstances beyond
his control that prevented him from proceeding with the
action in a proper fashion.'” Harvest v.
Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoting
Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d
1097, 1103 (9th Cir. 2006)). “A party, not the district
court, bears the burden of keeping the court apprised of any
changes in his mailing address.” Carey v.
King, 856 F.2d 1439, 1441 (9th Cir. 1988).
the Court received Plaintiff's Notice of his Change of
Address after the Report and Recommendation was sent to CCDC
a second time and ultimately returned as undeliverable.
(See generally ECF No. 5; see also ECF No.
8). Plaintiff asserts that he was prejudiced because he was
“not given any opportunity to object or reply to the
Court's orders.” (Mot. for Relief from J. 3:1-2).
Further, Plaintiff argues that he is not at fault for failing
to receive these documents and that being unable to respond
to the Court's Orders is “a great injustice.”
Court agrees. Plaintiff's inability to receive his Report
and Recommendation in order to timely object constitutes
“circumstances beyond his control.” Harvest
v. Castro, 531 F.3d at 749. Pursuant to this, the Court
determines that justice requires reopening the case and
permitting Plaintiff the opportunity to file ...