Overturf v. Brewer et al

Filing 49

ORDER denying 47 Motion for Reconsideration. (See document for full details). Signed by Judge G Murray Snow on 3/13/13. (LAD)

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WO

SC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George Wilson Overturf,
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Plaintiff,
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vs.
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Janice K. Brewer, et al.,
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Defendants.
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No. CV 11-1856-PHX-GMS (DKD)
ORDER

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Plaintiff George Wilson Overturf, who was confined in the Arizona State Prison

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Complex, Central Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant

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to 42 U.S.C. § 1983, which the Court dismissed for failure to state a claim with leave to

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amend.1 (Doc. 1, 7.) Plaintiff filed a First Amended Complaint, which the Court also

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dismissed for failure to state a claim with leave to amend. (Doc. 17.) Plaintiff requested and

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was granted several extensions of time to file a second amended complaint. (Doc. 22, 24,

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27, 29, 31, 32, 34, 35.) Plaintiff filed a Second Amended Complaint. (Doc. 38.) On

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November 26, 2012, the Court dismissed the Second Amended Complaint for failure to state

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a claim and dismissed this action. (Doc. 43.) Judgment was entered the same day. (Doc.

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On December 20, 2012, Plaintiff filed a notice of change of address reflecting that
he is currently held in Maricopa County’s Fourth Avenue Jail. (Doc. 48.)

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44.)

Plaintiff filed a post-judgment motion for leave to amend seeking additional

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opportunities to file an amended complaint in which to attempt to state a claim. (Doc. 45.)

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In an Order filed on December 4, 2012, the Court denied that motion. (Doc. 46.) Plaintiff

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subsequently filed a motion for reconsideration of the dismissal of his Second Amended

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Complaint. (Doc. 47.) That motion will be denied.

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Generally, motions to reconsider are appropriate only if the Court “(1) is presented

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

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manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist.

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No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A

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motion for reconsideration should not be used to ask a court “to rethink what the court had

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already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel Bohannon

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Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rather, such arguments should be

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directed to the court of appeals. Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 309

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(D. Ariz. 1992).

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Plaintiff seeks reconsideration for various reasons and his disagreement with the

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Court’s conclusions. Plaintiff disagrees with two footnotes concerning prescription labels.

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He contends that the Court erred in dismissing claims against Chavez based on failure to

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comply with prison regulations. Plaintiff also asserts that he did not receive certain

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prescriptions on various dates. In addition, he asserts that malfeasance by Romero, French,

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and Swindle could be proven with discovery.2 Plaintiff also apparently disagrees with the

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Court’s attempt to address Plaintiff’s allegations chronologically. He otherwise complains

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about various points and submits new exhibits. Plaintiff has not pointed to newly-discovered

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evidence, nor has he demonstrated that the Court committed clear error or an intervening

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change in controlling law. Rather, Plaintiff asks the Court to rethink what it has already

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thought through. That is not a basis for reconsideration. Accordingly, his motion for

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reconsideration will be denied.

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Malfeasance, absent more, does not rise to the level of a constitutional violation.
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IT IS ORDERED that Plaintiff’s motion for reconsideration is denied. (Doc. 47.)

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DATED this 13th day of March, 2013.

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