Medina v. NDOC Director

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * ALBERT MEDINA, Case No. 3:21-cv-00001-MMD-WGC Ninth Circuit Court of Appeals No. 21-16606 7 Plaintiff, v. ORDER GRANTING MOTION TO 8 RECONSIDER DISMISSAL ORDER, NEVADA DEPARTMENT OF REOPENING ACTION, SETTING NEW CORRECTIONS DIRECTOR, et al., DEADLINE TO AMEND, AND REQUIRING UPDATED ADDRESS 10 Defendants. (ECF No. 16) 12 Pro se plaintiff Albert Medina brings this civil-rights lawsuit to redress constitutional violations he allegedly suffered while incarcerated at Ely State Prison (“ESP”). (ECF No. 7.) On July 28, 2021, the Court screened Medina’s First Amended Complaint, dismissing the Eighth Amendment sexual-assault claim (Claim 1) and First Amendment retaliation claim (Claim 4) with leave to amend by August 27, 2021, and dismissing the other claims without leave to amend. (ECF No. 9 at 17-18.) But Medina did not file a second amended complaint or otherwise respond to the screening order. So on September 7, 2021, the Court granted Medina’s application to proceed in forma pauperis and dismissed this action because he failed to file an amended complaint. (ECF No. 10.)

21 Medina timely appealed the dismissal order. (ECF No. 12.) Two weeks later, Medina filed a letter asking the Court to reconsider its dismissal order, arguing that neither he nor ESP’s law library received notice of the screening order. (ECF No. 16.) The Court construed Medina’s letter as a motion for reconsideration and denied it for lack of jurisdiction. (ECF Nos. 17, 18.) The Ninth Circuit has reversed and remanded for the Court to decide Medina’s motion for reconsideration in the first instance. (ECF Nos. 24, 25 (mandate).) The Court now grants the reconsideration motion on its merits and I. RELIEF UNDER RULE 60(b)(1) 2 “Rule 60(b)(1) of [the Federal Rules of] Civil Procedure provides that the court may relieve a party or a party’s legal representative from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect.” Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223 (9th Cir. 2000). The Court dismissed and closed this action when Medina failed to timely file a second amended complaint as directed in the July 28, 2021, screening order. (ECF No. 10.) Medina asks the Court to reconsider its dismissal order, arguing that neither he nor ESP received notice of the Court’s screening order setting the deadline to amend. (ECF No. 16.) Medina supports his motion with documents showing that ESP’s law library did not receive notice of the screening order. And it appears from the Court’s records that the screening order was not emailed to ESP’s law library or otherwise sent to Medina.

13 The Court thus finds that Medina has shown his failure to timely file an amended complaint was the product of surprise. The Court therefore grants Medina’s motion for reconsideration and relieves him from the dismissal order and judgment. The Court will instruct the Clerk of the Court to reopen this action. And the Court will set a new deadline for Medina to file a second amended complaint consistent with the findings and directions stated in the Court’s screening order.

19 II. MEDINA MUST UPDATE HIS ADDRESS WITH THE COURT 20 The Court’s mail to Medina has been returned as undeliverable, stating that he is now housed at High Desert State Prison (“HDSP”). (ECF Nos. 26, 28.) The Nevada Department of Correction’s inmate database likewise states that Medina is housed at HDSP. Medina is advised that Nevada Local Rule IA 3-1 provides that a “pro se party must immediately file with the court written notification of any change of mailing address, email address, telephone number, or facsimile number.” “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 the dismissal of the action, entry of default judgment, or other sanctions || as deemed appropriate by the court.” Nev. Loc. R. IA 3-1. The Court will grant Medina a || 45-day extension of time to file his updated address with the Clerk of the Court.

Il ©CONCLUSION 4 It is therefore ordered that the motion for reconsideration (ECF No. 16) is granted.

5 It is further ordered that Plaintiff Medina has until December 8, 2022, to file a || second amended complaint consistent with the findings and directions in the Court’s July || 28, 2021, screening order.

8 It is further ordered that Plaintiff Medina has until December 8, 2022, to file his || updated address with the Court.

10 The Clerk of the Court is directed to (1) serve this order on Plaintiff Albert Medina || at the address listed for him with the Court in the ordinary course; (2) electronically send || Plaintiff Medina courtesy copies of this order and the Court’s July 28, 2021, screening || order and attachments (ECF Nos. 9, 9-1, 9-2) by sending them to the electronic address || listed with the Court for High Desert State Prison’s law library; (3) send Plaintiff Medina || courtesy paper copies of this order and the Court’s July 28, 2021, screening order and || attachments (ECF Nos. 9, 9-1, 9-2) via U.S. mail, first class;! and (4) reopen this case.

17 The Clerk of Court is further directed to randomly reassign this case to a new || United States Magistrate Judge considering Judge Cobb's retirement.

19 DATED THIS 24" Day of October 2022.

MIRANDA M. DU 23 CHIEF UNITED STATES DISTRICT JUDGE stag, EOF NO 91 exceeds 100 pages, so the Clerk of the Court will print it double- sided.