Hansen v. Ryan et al

Filing 73

ORDER withdrawing the reference to the Magistrate Judge as to Defendants' Motion for Reconsideration and Motion to Strike; denying as moot Defendants' 71 Motion to Strike; denying Defendants' 67 Motion for Reconsideration. Signed by Judge G Murray Snow on 10/3/11.(REW)

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WO

JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Karen Marie Hansen,

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Plaintiff,
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vs.
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Charles Ryan, et al.,
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Defendants.

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No. CV 09-1290-PHX-GMS (ECV)
ORDER

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Plaintiff Karen Marie Hansen brought this civil rights action under 42 U.S.C. § 1983

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against various Arizona Department of Corrections (ADC) employees (Doc. 10).1 On August

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17, 2011, the Court entered an Order denying Defendants’ Motion to Dismiss, which was

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based on Plaintiff’s failure to comply with a Court Order (Doc. 66, denying Mot. at Doc. 52).

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Before the Court is Defendants’ Motion for Reconsideration of that Order (Doc. 67).

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Defendant also moves to strike Plaintiff’s response to the Motion for Reconsideration (Doc.

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71).

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The Court will deny the Motion to Strike as moot and deny the Motion for
Reconsideration.

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Defendants are Sergeant Mitchell and Correctional Officers Rahman, Mims,
Thornton, Garcia, Jones, and Backes (Doc. 10).

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I.

Background2

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Plaintiff’s claims arose during her confinement at the Arizona State Prison Complex-

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Perryville, in Goodyear, Arizona (Doc. 10). In her First Amended Complaint, Plaintiff set

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forth two counts of retaliation and two counts of denial of access to the courts (id.).

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Defendants noticed Plaintiff’s deposition (Doc. 39), but she sought a protective order

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to prevent the deposition on the basis that the deposition notice was untimely and Defendants

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had failed to make initial disclosures (Doc. 40). The Court denied her motion and ordered

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her to participate in the deposition and answer questions (Doc. 47). During Plaintiff’s

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deposition on January 5, 2011, Plaintiff invoked the Fifth Amendment and refused to answer

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a question about a state civil case filed against her (Doc. 52 at 3). After unsuccessful

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attempts to telephone the Magistrate Judge and the District Judge, defense counsel canceled

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the deposition (id. at 3-4).

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Thereafter, Defendants moved for dismissal pursuant to Federal Rule of Civil

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Procedure 37(b)(2)(A)(v) on the ground that Plaintiff failed to follow a Court Order directing

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her to participate in the deposition (Doc. 52). The Court denied Defendants’ motion as

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premature and extended the time for Defendants to depose Plaintiff (Doc. 66).

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Defendants now move for reconsideration of that Order on the basis that the Court

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made a manifest error of law in denying Defendants’ Motion to Dismiss (Doc. 67 at 3).

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Plaintiff has filed a response in opposition (Doc. 69), which Defendants move to strike (Doc.

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71).

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II.

Motion for Reconsideration

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A.

Legal Standard

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Motions for reconsideration should be granted only in rare circumstances. Defenders

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of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995).

A motion for

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reconsideration is appropriate where the district court “(1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust,

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A more thorough factual background and review of Defendants’ Motion to Dismiss
arguments are set forth in the Court’s prior Order (Doc. 66 at 1-3).
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or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah

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County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Mere disagreement with a

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previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp.,

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689 F. Supp. 1572, 1573 (D. Haw. 1988). A motion for reconsideration “may not be used

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to raise arguments or present evidence for the first time when they could reasonably have

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been raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877,

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890 (9th Cir. 2000). Nor may a motion for reconsideration repeat any argument previously

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made in support of or in opposition to a motion. Motorola, Inc. v. J.B. Rodgers Mech.

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Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003).

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B.

Defendants’ Arguments

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Defendants maintain that reconsideration is necessary to avoid a manifest error of law

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(Doc. 67 at 3). Their argument rests on the assertion that Plaintiff was not candid with the

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Court when she cited to only a portion of State v. Rosas-Hernandez, 42 P.3d 1177, 1182

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(Ariz. App. 2002), in support of her claim that she was entitled to the privilege against self-

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incrimination in light of her pending Rule 32 Petition (Doc. 67 at 3-4). Defendants contend

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that Plaintiff cited to a passage in Rosas-Hernandez that left the impression that the privilege

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extended to any pending post-conviction relief proceeding (id. at 3). Defendants assert that

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“[t]o the contrary, the Rosas-Hernandez court continued its decision (after the portion cited

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by [Plaintiff]) by clarifying that the privilege against self-incrimination survives only during

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the period when a defendant can or is pursuing his initial petition for post-conviction relief”

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(id. at 3). Thus, Defendants claim that Plaintiff purposely misrepresented the scope of the

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appellate court’s holding (id. at 1, 4). They acknowledge that Plaintiff is pursuing a second

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Rule 32 Petition; however, they argue that this subsequent post-conviction proceeding is of

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no significance because Plaintiff’s right against self-incrimination expired when her initial

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petition for post-conviction relief was denied (id. at 4).

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For this reason, Defendants request that the Court reconsider its decision not to

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dismiss or, in the alternative, rule that Plaintiff may not refuse to answer any questions at her

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deposition based on an asserted Fifth Amendment privilege (id. at 5).
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C.

Analysis

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Under Local Rule of Civil Procedure 7.2(g)(2), no response to a motion for

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reconsideration is permitted unless ordered by the Court. Here, the Court did not direct

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Plaintiff to file a response, and no response is necessary for resolution of the motion.

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Plaintiff’s response will not be considered, and Defendants’ Motion to Strike the response

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will be denied as moot.

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Defendants’ Motion for Reconsideration will also be denied. As stated, a motion for

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reconsideration cannot be used to raise arguments that could have been raised earlier. See

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Kona Enters., Inc., 229 F.3d at 890. The Order denying Defendants’ Motion to Dismiss

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specifically noted that in their reply, Defendants failed to address and, thus, failed to

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controvert Plaintiff’s argument that the privilege against self-incrimination survives during

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post-conviction review proceedings (Doc. 66 at 5, citing Doc. 63). In their Motion for

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Reconsideration, Defendants now present argument that the privilege does not survive in

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subsequent Rule 32 proceedings (Doc. 67 at 4-5). Raising this argument that could have

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been raised earlier is not proper in a motion for reconsideration.

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Even if the Court considers Defendants’ argument, it fails. Defendants’ claim—that

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the holding in Rosas-Hernandez limits the right against self-incrimination to only the initial

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Rule 32 proceeding—is incorrect (see Doc. 67 at 3). In Rosas-Hernandez, the state appellate

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court held that a co-defendant, who was called to testify but who indicated that he intended

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to file a Rule 32 Petition, could invoke his Fifth Amendment privilege “during the time

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period in which a timely initial petition for post-conviction relief may be filed.” 42 P.3d at

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1182. Defendants rely on that sentence to argue that the privilege survives during only the

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initial petition proceeding (Doc. 67 at 4). But the succeeding sentences explain:

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We need not, and do not, address whether the prospect of subsequent petitions
for post-conviction relief provides for Fifth Amendment protection in the face
of competing Sixth Amendment concerns. That is an issue for another day.

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Id. Defendants fail to cite this portion of the decision. Nor do they cite any other case law

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that later addressed and actually ruled on whether subsequent petitions for post-conviction

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relief provide for Fifth Amendment protection. Consequently, there is no showing that the

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denial of Defendants’ Motion to Dismiss was based on a manifest error of law.

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Finally, as mentioned in the prior Order, it would be improper for the Court to issue

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a blanket prohibition on Plaintiff’s assertion of the Fifth Amendment privilege before the

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deposition. See Kastigar v. United States, 406 U.S. 441, 444 (1972) (the privilege may be

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invoked in the course of any criminal or civil proceeding). The Court cannot rule on whether

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Plaintiff’s answer to a question might be incriminating except in the context of a propounded

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question. See Estelle v. Smith, 451 U.S. 454, 462 (1981) (availability of the privilege turns

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on nature of the statement and the exposure it invites); Hoffman v. United States, 341 U.S.

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479, 486-87 (1951); Roach v. Nat’l Transp. Safety Bd., 804 F.2d 1147, 1151 (10th Cir.

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1986).

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Accordingly, Defendants’ Motion for Reconsideration will be denied.

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for

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Reconsideration (Doc. 67) and Motion to Strike (Doc. 71).

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(2) Defendants’ Motion to Strike (Doc. 71) is denied as moot.

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(3) Defendants’ Motion for Reconsideration (Doc. 67) is denied.

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DATED this 3rd day of October, 2011.

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