Montes v. Arizona, State of et al

Filing 113

ORDER: Plaintiff's Preliminary Injunction Number CIV-11-00267-CKJ to Vacate Judgement [sic] and Court Order in Document Numbers: 101 and 102 Filed on June 5, 2012 106 is DENIED; Plaintiff's Motion to Reopen Case Number: CIV-11- 00267-CKJ and Vacate Judgement [sic] and Court Order in Document Numbers: 101 and 102 Filed on June 5, 2012 107 is DENIED; and This matter is to remain closed. Signed by Judge Cindy K Jorgenson on 7/11/2012.(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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STEVEN MONTES,
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Plaintiff,
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vs.
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STATE OF ARIZONA; CITY OF
TUCSON, et al.,

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Defendants.
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No. CV-11-0267-TUC-CKJ
ORDER

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On June 29, 2012, Plaintiff filed his pro se Preliminary Injunction Number CIV-11-

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00267-CKJ to Vacate Judgement [sic] and Court Order in Document Numbers: 101 and 102

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Filed on June 5, 2012 [Doc. 106], Motion to Reopen Case Number: CIV-11-00267-CKJ and

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Vacate Judgement [sic] and Court Order in Document Numbers: 101 and 102 Filed on June

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5, 2012 [Doc. 107], and Notice of Appeal [Doc. 108]. On July 5, 2012, Plaintiff filed his pro

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se Appellate brief [Doc. 111].

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I.

FACTUAL BACKGROUND

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On June 5, 2012, this Court issued its Order [Doc. 101] screening and dismissing

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Plaintiff’s [Fifth Amended] Complaint [Doc. 93]. On June 28, 2012, this Court issued its

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Order [Doc. 105] denying Plaintiff’s motion for reconsideration regarding the Court’s June

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5, 2012 Order [Doc. 101] and his motion to amend his Complaint for a sixth time.

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II.

PRELIMINARY INJUNCTION

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Plaintiff appears to seek a preliminary injunction against entry of this Court’s June 5,

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2012 Judgment [Doc. 102] dismissing this cause of action. A preliminary injunction is an

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extraordinary and drastic remedy and will not be granted absent a clear showing of likely

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success in the underlying claim and likely irreparable injury. See Mazurek v. Armstrong, 520

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U.S. 968, 972, 117 S.Ct. 1865, 1867, 138 L.Ed.2d 162 (1997) (per curiam); Warsoldier v.

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Woodford, 418 F.3d 989, 993-94 (9th Cir. 2005); Pratt v. Rowland, 65 F.3d 802, 805 (9th

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Cir. 1995); Fed. R. Civ. P. 65. To obtain a preliminary injunction, the moving party must

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show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555

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U.S. 7, 20, 129 S. Ct. 365, 374, 172 L.Ed.2d 249 (2008). The moving party has the burden

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of proof on each element of the test. Environmental Council of Sacramento v. Slater, 184

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F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

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Additionally, the function of a preliminary injunction is to preserve the status quo

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pending a determination on the merits. Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir.

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1988). As such, there is heightened scrutiny where the movant seeks to alter rather than

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maintain the status quo. Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993)

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(holding that mandatory, as opposed to prohibitory, injunctions are “subject to a heightened

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scrutiny and should not be issued unless the facts and law clearly favor the moving party.”).

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The Ninth Circuit Court of Appeals has held that this type of mandatory injunctive relief is

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disfavored, and should be denied unless the facts and law clearly favor the movant.

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Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979).

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Plaintiff has failed to meet his burden to show that a preliminary injunction is

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warranted in this circumstance. After reviewing and considering Plaintiff’s several attempts

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at filing a Complaint which stated a cognizable claim, this Court has dismissed Plaintiff’s

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case because of his failure to allege a cause of action. Plaintiff has filed his Notice of Appeal

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[Doc. 108] and now seeks relief from the Ninth Circuit Court of Appeals. Continuing to
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litigate this closed case is prejudicial to the defendants, a waste of judicial resources, and as

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such not in the public interest. Accordingly, Plaintiff’s motion for preliminary injunction is

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denied.

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III.

RELIEF FROM JUDGMENT

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Plaintiff seeks reconsideration of this Court’s June 5, 2012 Order [Doc. 101]. Federal

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Rule of Civil Procedure 60(b) provides for reconsideration where one or more of the

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following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

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discovered evidence which by due diligence could not have been discovered before the

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court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction

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of the judgment; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist.

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

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(6) requires a showing that the grounds justifying relief are extraordinary; mere

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dissatisfaction with the court’s order or belief that the court is wrong in its decision are not

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adequate grounds for relief. See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d

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1338, 1341 (9th Cir. 1981). Mere disagreement with a previous order is an insufficient basis

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for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw.

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1988). “No motion for reconsideration shall repeat in any manner any oral or written

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argument made in support of or in opposition to the original motion.” Motorola, Inc. v. J.B.

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

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Plaintiff alleges no newly discovered evidence, no mistake or surprise, and no fraud

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by the adverse party. Plaintiff does not provide any other reason justifying relief. The motion

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for reconsideration is not based on an intervening change in controlling law, nor does it offer

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any new argument as to how his Fifth or Sixth Amended Complaints sufficiently state a

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claim. Plaintiff submitted hundreds of pages of exhibits in opposition to motions to dismiss

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and in support of his Complaints generally. Despite Plaintiff’s displeasure with this Court’s

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“refusal” to extend his time to respond to Defendants’ motions to dismiss, the Court did

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review and consider the hundreds of pages of supplemental documents filed by Plaintiff after
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his responses were due. In short, Plaintiff has not presented any additional information to

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warrant reconsideration of the Court’s previous order. See AcandS, Inc., 5 F.3d at 1263.

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Finally, the Court notes that Plaintiff was given ample opportunity to file a sufficient

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Complaint, yet failed to do so. The Court finds reconsideration is not appropriate, and the

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motion will be denied.

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IV.

APPELLATE BRIEF

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The Court reminds Plaintiff that this it does not have jurisdiction over his appeal. "As

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a general rule, ‘[t]he filing of a notice of appeal is an event of jurisdictional significance –

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it confers jurisdiction on the court of appeals and divests the district court of its control over

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those aspects of the case involved in the appeal.’” Estate of Conners by Meredith v.

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O'Connor, 6 F.3d 656, 658 (9th Cir. 1993) (quoting Griggs v. Provident Consumer Discount

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Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam)). Accordingly,

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the Court finds Plaintiff’s appellate brief improvidently filed with this Court and directs

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Plaintiff to the Ninth Circuit Court of Appeals.

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Accordingly, IT IS HEREBY ORDERED that:

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1)

Plaintiff’s Preliminary Injunction Number CIV-11-00267-CKJ to Vacate

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Judgement [sic] and Court Order in Document Numbers: 101 and 102 Filed on June 5, 2012

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[Doc. 106] is DENIED;

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2)

Plaintiff’s Motion to Reopen Case Number: CIV-11-00267-CKJ and Vacate

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Judgement [sic] and Court Order in Document Numbers: 101 and 102 Filed on June 5, 2012

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[Doc. 107] is DENIED; and

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3)

This matter is to remain closed.

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DATED this 11th day of July, 2012.

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