Parker v. Adu-Tutu et al

Filing 41

ORDER The reference to Magistrate Judge Edward C. Voss is withdrawn only with respect to Plaintiff's "Motion For Reconsideration" Doc. 38 . Plaintiff"s "Motion For Reconsideration" (Doc. 38) is denied. All other matters must remain with Magistrate Judge Edward C. Voss for disposition as appropriate. Signed by Judge G Murray Snow on 11/1/11.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Steven Parker,

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Plaintiff,

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vs.

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Adu-Tutu, et al.,
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Defendants.
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No. CV 10-2747-PHX-GMS (ECV)
ORDER

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Pending before the Court is Plaintiff’s “Motion For Reconsideration” (Doc. 38),

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which the Court will deny.

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I.

Procedural Background

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On December 20, 2010, Plaintiff Mark Steven Parker, who is confined in the Arizona

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State Prison Complex (ASPC)-Tucson, filed a pro se pleading entitled “Order To Cause For

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A[n] Injunction For Writ Of Habeas Corpus By A Person In State Custody” (Doc. 1), which

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the Clerk of Court docketed as a Petition for Writ of Habeas Corpus (Petition). Plaintiff also

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filed a pleading entitled “Injunction For a Writ Of Habeas Corpus By A Person In State

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Custody” (Doc. 2) and an “Application To Proceed In Forma Pauperis By A Prisoner

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(Habeas)” (Doc. 3).

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By Order filed January 4, 2011 (Doc. 5), the Court dismissed without prejudice, with

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leave to amend, Plaintiff’s Petition (Doc. 1), which the Court construed as a civil rights

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Complaint brought pursuant to 42 U.S.C. § 1983. Plaintiff was given 30 days from the filing

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date of the Order to file a first amended complaint that complied with the Order.

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The Court’s Order also denied without prejudice Plaintiff’s pleading entitled

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“Injunction For a Writ Of Habeas Corpus By A Person In State Custody” (Doc. 2) and

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“Application To Proceed In Forma Pauperis By A Prisoner (Habeas)” (Doc. 3). Plaintiff

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was given 30 days from the filing date of the Order to either pay the $350.00 filing fee or file

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a completed “Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-

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Habeas)” and a certified six-month trust account statement from the Arizona Department of

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Correction’s Central Office.

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On January 3, 2011, Plaintiff filed a “Motion For Leave To File An Amended

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Complaint To Injunction For Writ Of Habeas Corpus” (Doc. 6) and a second “Application

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To Proceed In Forma Pauperis By A Prisoner (Habeas)” (Doc. 7). Neither of these

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pleadings came to the attention of the Court before the Court’s January 4, 2011 Order

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(Doc. 5) was filed. By Order filed January 11, 2011 (Doc. 9), the Court denied without

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prejudice as moot both Plaintiff’s “Motion For Leave To File An Amended Complaint To

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Injunction For Writ Of Habeas Corpus” and second “Application To Proceed In Forma

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Pauperis By A Prisoner (Habeas).” Plaintiff was advised that he must still comply with the

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Court’s January 4, 2011 Order (Doc. 5) in a timely manner.

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On February 16, 2011, Plaintiff filed a “Motion For: Injunctive Relief” (Doc. 11).

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Then, on February 22, 2011, Plaintiff filed a First Amended Complaint (Doc. 12), an

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“Application To Proceed In Forma Pauperis (Doc. 13), a “Certified Statement Of Account”

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(Doc. 14), and a pleading entitled “Motion For: Informing Court of Due Process Violations”

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(Doc. 15).

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On March 23, 2011, Plaintiff filed a Notice of Change of Address (Doc. 16) and a

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“Motion For: Request For Status” (Doc. 17). On April 4, 2011, Plaintiff filed “Plaintiff’s

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Motion For Preliminary Injunction” (Doc. 18), “Memorandum Of Law In Support Of

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Plaintiff’s Motion For Preliminary Injunction” (Doc. 19), and a “Motion For Leave To File

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An Amended Complaint” (Doc. 20). On April 5, 2010, the Court issued a “Notice To Filer

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Of Deficiencies In Electronically Filed Documents” (Doc. 21). On April 18, 2011, Plaintiff
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filed a “Motion For Extension Of Time” (Doc. 22) and a pleading entitled “Filer Not In

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Possession Requesting Copy” (Doc. 23).

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By Order filed April 21, 2011 (Doc.24), the Court granted Plaintiff’s Application to

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Proceed In Forma Pauperis (Doc. 13); granted in part and denied in part Plaintiff’s “Motion

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For: Request For Status” (Doc. 17), “Motion For Leave To File An Amended Complaint”

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(Doc. 20), and pleading entitled “Filer Not In Possession Requesting Copy” (Doc. 23);

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denied Plaintiff’s “Motion For Extension Of Time” (Doc. 22) as moot; denied without

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prejudice Plaintiff’s “Motion For: Injunctive Relief” (Doc. 11), “Motion For: Informing

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Court of Due Process Violations” (Doc. 15), and “Plaintiff’s Motion For Preliminary

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Injunction” (Doc. 18); dismissed without prejudice Plaintiff’s First Amended Complaint

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(Doc. 12); gave Plaintiff 30 days from the date the Order was filed to file a second amended

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complaint; and directed the Clerk of Court to mail to Plaintiff a copy of his First Amended

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Complaint (Doc. 12) and a court-approved form for filing a civil rights complaint by a

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prisoner.

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On May 16, 2011, Plaintiff filed a Second Amended Complaint (Doc. 26), a new

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“Application To Proceed In Forma Pauperis” (Doc. 27), a “Certified Statement Of Account”

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(Doc. 28), “Plaintiff’s Motion For Preliminary Injunction” (Doc. 29), “Memorandum Of Law

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In Support Of Plaintiff’s Motion For Preliminary Injunction” (Doc. 30), and “Motion For:

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Extraordinary Circumstances Exist For Delay Filing” (Doc. 31). On June 22, 2011, Plaintiff

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filed a “Motion For Due Process Violation Request For Injunctive Relief” (Doc. 34).

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By Order filed August 17, 2011 (Doc. 35), the Court denied as moot Plaintiff’s

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Application to Proceed In Forma Pauperis (Doc. 27) and “Motion For: Extraordinary

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Circumstances Exist For Delay Filing” (Doc. 31); denied Plaintiff’s “Motion For Due

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Process Violation Request For Injunctive Relief” (Doc. 34); dismissed from this action

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Defendants Charles L. Ryan, Adu-Tutu, Phen, Chitwood, Thunderwood, John Doe Food

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Service Canteen Manager, and Kenter; dismissed Plaintiff’s claims under the Americans with

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Disabilities Act and the Rehabilitation Act, and Counts IV, V, VI, VII, and IX of the Second

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Amended Complaint (Doc. 26); required Defendant Rowe to answer Counts II, III, and VIII
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of the Second Amended Complaint and to file a response to “Plaintiff’s Motion For

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Preliminary Injunction” (Doc. 29); and referred this matter to Magistrate Judge Edward C.

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Voss pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial

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proceedings as authorized under 28 U.S.C. § 636(b)(1).

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II.

Plaintiff’s Motion for Reconsideration

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On September 26, 2011, Plaintiff filed his “Motion For Reconsideration” (Doc. 38),

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in which he seeks reconsideration of the Court’s Order filed on August 17, 2011 (Doc. 35)

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in so far as it dismissed Defendants Charles L. Ryan and John Doe Food Service Canteen

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Manager from this action.

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Plaintiff has given no indication which Federal Rule governs his Motion. However,

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the Court has the authority and discretion to revise its Order filed August 17, 2011, pursuant

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to Rule 54(b) of the Federal Rules of Civil Procedure. Rule 54(b) provides in relevant part

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that “any order or other decision, however designated, which adjudicates fewer than all the

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claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time

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before the entry of a judgment adjudicating all the claims and all the parties’ rights and

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liabilities.”

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In general, “[r]econsideration is appropriate if the district court (1) is presented with

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

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unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J,

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Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation

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omitted).

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reconsideration.” Id.

“There may also be other, highly unusual, circumstances warranting

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Having considered the foregoing standards, this Court’s Order filed August 17, 2011,

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the record in this case, and Plaintiff’s Motion, the Court declines to revise its Order filed

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August 17, 2011. Plaintiff has not alleged that there has been an intervening change in

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controlling law, or presented the Court with any persuasive evidence indicating that it made

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a manifest error of law or fact. Further, he presents no newly discovered evidence. See

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Brown v. Wright, 588 F.2d 708 (9th Cir. 1978). Accordingly, Plaintiff’s Motion will be
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denied.

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IT IS ORDERED:

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(1)

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The reference to Magistrate Judge Edward C. Voss is withdrawn only with

respect to Plaintiff’s “Motion For Reconsideration” (Doc. 38).

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(2)

Plaintiff’s “Motion For Reconsideration” (Doc. 38) is denied.

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(3)

All other matters must remain with Magistrate Judge Edward C. Voss for

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disposition as appropriate.
DATED this 1st day of November, 2011.

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