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Oliver v. Nielson

United States District Court, D. Utah, Northern Division

October 31, 2017

D. BRUCE OLIVER, Plaintiff,
v.
DEPUTY LARRY G. NIELSON, DEPUTY BRENT E. PETERS, DEPUTY KEVIN P. FIELDING, DEPUTY M. DAVIS, DEPUTY ALAN BLACK, JOHN DOES 1-10, Defendant.

          Jill N. Parrish, District Judge.

          REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION TO AMEND COMPLAINT AND DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO RULE 59

          Brooke C. Wells, United States Magistrate Judge.

         Pro se Plaintiff D. Bruce Oliver (“Plaintiff”)[1] filed his Motion to Amend Complaint Pursuant to Rule 15 and Motion to Alter or Amend Judgment Pursuant to Rule 59 (“Motion”) on August 18, 2017.[2] Defendants opposed Plaintiff's Motion, [3] and Plaintiff replied.[4] This matter was referred to Magistrate Judge Brooke Wells by District Judge Jill Parrish pursuant to 28 U.S.C. § 636(b)(1)(B).[5] The Court has carefully reviewed the memoranda submitted by the parties. Pursuant to DUCivR 7-1(f), this Court has determined that oral argument on the Motion is unnecessary and will determine the Motion on the basis of the written memoranda.

         I. Motion to Amend Complaint

         In Plaintiff's Motion he seeks leave of the Court under Rule 15 to file an Amended Complaint. It appears Plaintiff seeks to amend his Second Amended Complaint[6] to add a § 1983 claim against Davis County and Sheriff Richardson, pursuant to Monell v. Dept. of Social Servs. of City of New York.[7] Rule 15(a)(2) states “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.” Under local rule DUCivR 15-1, “[p]arties moving under FRCP 15-1[8] to amend a complaint must attached the proposed amended complaint as an exhibit to the motion for leave to file.”

         The Tenth Circuit has found that a Court may deny a motion to amend a complaint for failure to submit the proposed amendment.[9] Without attaching the proposed amendment, it is “impossible for the court to determine its viability.”[10] “[A] request for leave to amend must give adequate notice to the district court and to the opposing party of the basis of the proposed amendment before the court is required to recognize that a motion for leave to amend is before it.”[11] This “requirement of notice merely assures that ‘[w]e do not require district courts to engage in independent research or read the minds of litigants to determine if information justifying the amendment exists.”[12]

         Here, Plaintiff has failed to file the proposed amended complaint as an exhibit to his Motion. Plaintiff only attached a notice of claim that he allegedly sent to the Davis County Clerk outlining his grievance related to how his money was returned to him after being booked into jail. The facts alleged in the notice of claim contradict the facts alleged in Plaintiff's First and Second Amended Complaints, which state “Davis County Jail and Davis County Sheriff's Office has never returned, almost all of the money seized from [Plaintiff].”[13] In his First and Second Amended Complaints, Plaintiff has not alleged any facts related to the “pre-paid” card mentioned in the notice of claim. Further, Plaintiff has not pled facts sufficient to establish a “policy or custom” that violated a federally protected right. The Court is unable to ascertain the merits of the proposed amendment because Plaintiff failed to attach the proposed amended complaint to his Motion, and the notice of claim presented does not present sufficient facts to establish a § 1983 claim for municipal liability.

         Accordingly, this Court recommends that Plaintiff's Motion to Amend Complaint be DENIED, without prejudice. For clarity, should Plaintiff choose to refile his motion for leave to amend the complaint, Plaintiff is ORDERED to attach a copy of his proposed amended complaint to such motion.

         II. Motion to Alter or Amend Judgment

         Plaintiff seeks relief from the District Judge's Order[14] adopting this Court's Report and Recommendation (“R&R”).[15] The Plaintiff cites two bases for his requested relief: (1) he did not receive the R&R, thus he could not file a timely objection to it, and (2) “there are facts in the [R&R] which are incorrect.”[16]

         “The Federal Rules of Civil Procedure provide that a postjudgment motion may ‘aris[e] under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason).”[17] “The[se] two rules serve different purposes and produce different consequences, both substantive and procedural.”[18] Where a “Rule 59(e) motion is normally granted ‘only to correct manifest errors of law or to present newly discovered evidence, '”[19] Rule 60(b), on the other hand, allows the “court to reopen the judgment based on counsel's mistake, inadvertence, or excusable neglect”[20] or “any other reason that justifies relief.”[21]

         Here, Plaintiff seeks relief under Rule 59(e). “Rule 59(e) relief is appropriate only where “the court has misapprehended the facts, a party's position, or the controlling law.”[22] Plaintiff claims that “there are facts in the [R&R] which are incorrect.”[23] To support this claim, Plaintiff argues that the facts in the R&R do not accurately reflect the facts alleged in the notice of claim attached to his Motion.[24] However, the facts in this Court's R&R were based on the facts presented in Plaintiff's pleadings before the Court, i.e. Plaintiff's First Amended Complaint. As noted above, the Plaintiff's First and Second Amended Complaint allege facts different from those in the notice of claim. It is Plaintiff's fault that he inaccurately plead the facts, and not this Court's misapprehension of those facts, which lead to this Court's decision that Plaintiff now seeks to have altered and amended. Therefore, Plaintiff has failed to show that this Court misapprehended the facts, a party's position, or the controlling law, based on the pleadings that were before the Court at the time of the ruling.

         Plaintiff also requests that the District Judge's Order be altered or amended since he did not have an opportunity to file an objection to the R&R because he did not receive notice of the R&R. This is not a basis for relief under Rule 59(e). Even construing this argument under Rule 60(b) is not helpful to Plaintiff.[25] “Relief under Rule 60(b) is ‘extraordinary and may only be granted in exceptional circumstances.'”[26] “In narrow circumstances, Rule 60(b) relief may be granted when ‘a litigant has, through no fault of his own, failed to receive notice of entry of judgment, and has shown that he exercised due diligence to ascertain whether the judgment has been entered.[27] Here, however, the Notice of Electronic Filing (“ECF) for the R&R indicates that notice was sent to Plaintiff at the address he provided to the court, and it is the same address that the Order adopting the R&R was sent to and received at. Further, no mail addressed to Plaintiff has been returned to the Court as undeliverable. Plaintiff has failed to present circumstances beyond his control that precluded him from receiving notice of or timely opposing the R&R. Thus, Plaintiffs argument that he did not receive notice of the R&R is without merit. [28]

         Accordingly, this Court recommends that Plaintiffs Motion to Alter or Amend ...


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