Opinion
3:15-cv-00512-RCJ-WGC
02-17-2017
STEVEN KINFORD, Plaintiff, v. JAMES PINCOCK et al., Defendants.
ORDER
Plaintiff sued Defendants in state court alleging deliberate indifference under the Eighth Amendment pursuant to 42 U.S.C. § 1983 and state negligence law based on allegedly defective facial reconstruction surgery. Defendants removed. The Court granted Defendants' motion to dismiss at the recommendation of the Magistrate Judge. The Magistrate Judge had recommended dismissal of the action with prejudice but also recommended keeping the case open to give Plaintiff an opportunity to amend to make allegations of unlawful retaliation against two new defendants. The Court nominally adopted the report and recommendation in full but in substance rejected it in part, ordering the Clerk to close the case.
Plaintiff has now asked the Court to clarify the procedural posture of the case. The Court interprets the motion as a motion for relief from judgment under Rule 60(a). The Court has lost jurisdiction to the Court of Appeals, however, and can only make an indicative ruling under Rule 62.1. If the Court of Appeals were to remand for the limited purpose of ruling on the present motion, the Court would rule that it made an oversight as contemplated under Rule 60(a) when it dismissed without leave to amend to make allegations of unlawful retaliation against the two proposed defendants.
CONCLUSION
IT IS HEREBY INDICATED that the Court WOULD GRANT the Motion for Relief from Judgment (ECF No. 51) if the Court of Appeals were to remand for that purpose.
IT IS SO ORDERED. DATED: This 17th day of February, 2017.
/s/_________
ROBERT C. JONES
United States District Judge