Nance v. Miser et al

Filing 43

ORDER, the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion to Take Judicial Notice 33 , which the Court construes as a motion for reconsideration; Plaintiff's Motion to Take Judicial Notice 33 is denied without prejudice. Signed by Senior Judge Stephen M McNamee on 5/22/15.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Keith Preston Nance,

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No. CV 14-0500-PHX-SMM (DKD)

Plaintiff,
v.

ORDER

Allen Miser, et al.,
Defendants.

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On January 12 and 26, 2015, Plaintiff Keith Preston Nance filed two motions for

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injunctive relief. Defendants filed responses to both motions, but Plaintiff did not file

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replies. In a March 24, 2015 Order, the Court denied Plaintiff’s requests for injunctive

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relief. (See Doc. 22.)

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On April 4, 2015, Plaintiff filed a “Motion to Take Judicial Notice” and

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“Plaintiff’s Reply in Support of Motion for Temporary Restraining Order and

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Preliminary Injunction.” (Docs. 33, 34.) In his Motion to Take Judicial Notice, Plaintiff

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asserts that Defendants did not serve him with their responses to his motions for

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injunctive relief; therefore, the Court’s Order “was based upon ex parte filing by the

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Defendants.” (Doc. 33 at 2.)

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It appears that Plaintiff now wants the Court to consider his Reply in Support of

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Motion for Temporary Restraining Order and Preliminary Injunction. Therefore, the

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Court will construe Plaintiff’s Motion to Take Judicial Notice as one for reconsideration

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of the March 24, 2015 Order. The Court will deny the motion for reconsideration.

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I.

Background

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Plaintiff, a Muslim incarcerated at the Arizona State Prison Complex-Florence,

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filed a Complaint alleging in part that he had been restricted from growing a beard more

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than a ¼-inch long. (Doc. 1.) On January 12 and 26, 2015, Plaintiff filed two motions

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seeking injunctive relief from further inmate disciplinary actions regarding enforcement

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of ADC Department Order (“DO”) Number 704, which prohibits an inmate from growing

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a beard longer than ¼ inch. (See Docs. 18, 26.)

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Defendants filed responses to Plaintiff’s motions on January 26 and February 9,

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2015. (Docs. 19, 21.) In their second response, Defendants asserted that in light of the

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Supreme Court’s decision in Holt v. Hobbs, 135 S. Ct. 853, __ U.S. __ (Jan. 20, 2015),

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they “are prepared to maintain the status quo, allow [Plaintiff] a ½-inch religious shaving

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waiver, and refrain from disciplining, withdrawing privileges, or reclassifying him for

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keeping a beard up to that length.”

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Defendants maintained that “no injunctive relief is necessary or appropriate.” (Id.)

(Doc. 21 at 1.)

Because of this allowance,

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In the March 24, 2015 Order denying Plaintiff’s requests for injunctive relief, the

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Court noted that Plaintiff had failed to file a reply to Defendants’ assertion that they will

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comply with the standard announced in Holt, which held that the Arkansas Department of

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Corrections’ grooming policy violated RLUIPA “insofar as it prevents petitioner from

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growing a ½-inch beard in accordance with his religious beliefs.” (Doc. 22 at 5 (quoting

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Holt, 135 S. Ct. at 867).)

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The Court considered Plaintiff’s motions and found that Plaintiff failed to meet his

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burden on each element of the test for injunctive relief announced in Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). (Doc. 22 at 6.) Specifically, the Court

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found that because Defendants stated that they are willing to comply with Holt and

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refrain from disciplining Plaintiff if he keeps his beard at no more than ½ inch, Plaintiff

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had not shown that he is likely to succeed on the merits of his claim. (Id. at 5-6.) The

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Court also found that because Plaintiff had not replied to Defendants’ assertion that they

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will comply with Holt, Plaintiff had failed to meet his heightened burden of showing

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irreparable injury. (Id. at 6.) Nor had Plaintiff shown what hardships he would suffer, if

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any, by Defendants allowing him to keep a ½-inch beard, and he failed to meet his

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heightened burden of show it is in the public interest to grant some other type of

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preliminary relief. (Id.)

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II.

Motion to Take Judicial Notice

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On April 6, 2015, Plaintiff filed his Motion to Take Judicial Notice. (Doc. 33.) In

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his Motion, Plaintiff asserts that Defendants never served him with their responses to his

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motions for injunctive relief. As support, Plaintiff attached a request he made to CO II

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Slade for copies of the incoming legal mail log for the South Unit for February and

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March 2015. (Doc. 33 at 3.) Plaintiff also attached redacted copies of “Incoming

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Legal/Certified Mail” logs, which apparently show he received legal mail on February 2

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and 12, 2015 and on March 5, 6 and 9, 2015. (Id. at 4-9.) Because these log pages do not

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reflect incoming mail from Defendants related to Plaintiff’s preliminary injunction

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requests, Plaintiff apparently argues that Defendants did not serve their Responses on

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him. Plaintiff now asks the Court to impose sanctions under Federal Rule of Civil

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Procedure 11 in the form of an order that all future correspondence to Plaintiff from

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Defendants be mailed to him by certified mail requiring a signed receipt. (Doc. 33 at 2.)

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Defendants respond that while the mail logs do show that Plaintiff received some

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mail from Defendants, there do not appear to be any entries for Defendants’ January 26

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and February 9, 2015 responses to Plaintiff’s first and second motions for a preliminary

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injunction. (Doc. 36 at 1-2.) Nevertheless, Defendants argue “it does not automatically

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follow that Defendants and/or undersigned were in derogation of their service

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obligations.” (Id. at 2.) Defendants attached a Declaration from legal secretary Colleen

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Jordan attesting that she filed and served Defendants’ responses on Plaintiff via U.S. Mail

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“consistent with the certificate attached,” and that neither she nor Defendants’ counsel

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received their responses in return or undelivered mail. (Id. and Doc. 36-1 ¶¶ 5-6.)

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Therefore, Defendants argue that “the missing document is not attributable to

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Defendants, undersigned, or Ms. Jordan” and that Rule 11 sanctions are inappropriate

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because Plaintiff has failed to identify how Defendants or their counsel violated the rule.

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(Doc. 36 at 2.)

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The Court finds that Plaintiff has not demonstrated that he did not receive

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Defendants’ responses due to any failure on Defendants’ part or that Defendants have

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otherwise violated Rule 11. The Certificate of Service on each of Defendants’ responses

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certifies that the responses were transmitted electronically to the Court and served by

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mail on Plaintiff. (See Doc. 19 at 7, Doc. 21 at 2.) Also, Defendants’ secretary has

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avowed, under penalty of perjury, that she served the documents on Plaintiff via U.S.

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Mail. Thus, Defendants’ service of their responses were in compliance with Federal

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Rules of Civil Procedure 5(b)(2)(C), 5(d)(1) and 5(d)(3), as well as Local Rule of Civil

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Procedure 5.5(b).

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sanctions and an order requiring Defendants to mail all future correspondence to Plaintiff

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by certified mail.

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III.

Accordingly, the Court will deny Plaintiff’s request for Rule 11

Plaintiff’s Reply in Support of Motion for Temporary Restraining Order

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In his Reply, Plaintiff repeats many of the arguments he previously made in his

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two motions for injunctive relief, and he does not specifically address Defendants’

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assertion that they will now allow Plaintiff a ½-inch shaving waiver in light of Holt.

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In a Declaration attached to his Reply, Plaintiff says he sent Defendant Linderman

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an Inmate Letter on January 20, 2015, stating that in Holt, the Supreme Court

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“unanimously voted in favor of inmates growing full beards in compliance with their

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sincerely held religious beliefs.” (Doc. 34 at 9 ¶ 12). Plaintiff asked Linderman for

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“authorization to modify [his] current shaving waiver which reads ¼ inch be changed to

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accommodate [his] growing a full beard without being subjected to disciplinary report as

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a practicing Muslim.” (Id.) According to Plaintiff, Linderman responded on March 4,

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stating that Plaintiff either “misunderstand[s] or ha[s] misrepresented the [Holt]

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decision”; that “compliance with current policy is required”; and that “ADC is reviewing

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current policy in light of the decision and if/when changes are made, inmates will be

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notified.” (Id. ¶ 13.) Plaintiff argues that the current ¼-inch policy “is the last actual and

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contested state of affairs that preceded this litigation and remains preserved.” (Id. at 10

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¶ 19.)

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Plaintiff also asserts that ADC officials have not informed him “that they are

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prepared to maintain the status quo, allowing the Plaintiff a ½ inch religious shaving

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waiver, and refrain from disciplining, withdrawing privileges, or reclassifying him for

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keeping a beard up to that length.” (Doc. 34 at 12 ¶ 29.) Finally, Plaintiff argues that

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“Defendants proposal to provide the Plaintiff ½ inch beard infringes upon his sincerely

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held religious belief[;] he’s commanded to grow a full beard.” (Id. at 13 ¶ 34.)

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IV.

Legal Standard and Analysis

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Motions for reconsideration should be granted only in rare circumstances.

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Defenders 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

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

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disagreement with a previous order is an insufficient basis for reconsideration. See Leong

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v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).

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reconsideration “may not be used to raise arguments or present evidence for the first time

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when they could reasonably have been raised earlier in the litigation.” Kona Enters., Inc.

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v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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reconsideration repeat any argument previously made in support of or in opposition to a

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motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D.

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Ariz. 2003).

Mere

A motion for

Nor may a motion for

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Here, Plaintiff has not presented any basis for the Court to reconsider its March 24

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Order. Plaintiff has not presented any newly discovered evidence. While Plaintiff asserts

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in his Declaration that ADC officials have not informed him that they will allow him

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a ½-inch shaving waiver, he does not say that he has been disciplined since then for

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maintaining a beard of ½ inch or less. It appears that Plaintiff is arguing that even if

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Defendants do allow him a ½-inch beard—the current allowance under controlling law—

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his constitutional rights are still violated. Plaintiff’s disagreement with the law, however,

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is not a basis for reconsideration.

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controlling law since Holt, and Plaintiff has not demonstrated that the Court committed

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clear error or that its initial decision was manifestly unjust.

There has not been any intervening change in

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Because Plaintiff has failed to state any valid basis for the Court to reconsider its

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March 24, 2015 Order, Plaintiff’s Motion to Take Judicial Notice, which the Court

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construes as a motion for reconsideration, is denied.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to Plaintiff’s

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“Motion to Take Judicial Notice” (Doc. 33), which the Court construes as a motion for

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reconsideration.

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(2)

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Plaintiff’s Motion to Take Judicial Notice (Doc. 33) is denied without

prejudice.
DATED this 22nd day of May, 2015.

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Honorable Stephen M. McNamee
Senior United States District Judge

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