Tierney v. Torikawa et al

Filing 44

ORDER DENYING 42 MOTION UNDER RULE 60(b). Signed by JUDGE LESLIE E. KOBAYASHI on August 7, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,

)
)
Plaintiff,
)
)
vs.
)
)
LOIS TORIKAWA, et al.,
)
)
)
Defendants
_____________________________ )

CIV. NO. 12-00056 LEK-RLP
ORDER DENYING MOTION UNDER
RULE 60(b)

ORDER DENYING MOTION UNDER RULE 60(b)
Plaintiff moves for reconsideration of the court’s
July 24, 2012, Order denying his motion for a temporary
restraining order (“TRO”), ECF #38, pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure.

See Ord., ECF #42.

Plaintiff

protests that the court incorrectly stated that inmate
Matt Pattioay is not incarcerated with him in Arizona at the
Saguaro Correctional Center (“SCC”).

Plaintiff also disputes the

court’s holding that he has no right to remain in Hawaii to
complete the remainder of his sentence, and argues that Fed. R.
Crim. P. 43 grants him the right to be present at proceedings in
his numerous pending civil actions in this court and in the state
court.

Plaintiff’s Rule 60(b) Motion is DENIED.
Rule 60(b) permits reconsideration based on: (1)

mistake, inadvertence, surprise, or excusable neglect; (2)
newly-discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59;

(3) fraud, misrepresentation, or misconduct by an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the operation of
the judgment.

See Fed. R. Civ. P. 60(b)(1)-(b)(6).

Rule 60

reconsideration is generally appropriate in three instances: (1)
when there has been an intervening change of controlling law; (2)
new evidence has come to light; or (3) when necessary to correct
a clear error or prevent manifest injustice. School District No.
1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
First, the court accepts that Pattioay is incarcerated
in Arizona in the same prison as Plaintiff.

See ECF #42 at 2

(letter from the Hawaii Department of Public Safety stating
Pattioay is at SCC).

However, the court simply noted in a

footnote that Hawaii’s criminal database did not show that
Pattioay was incarcerated.

See Ord., ECF #38 at 5, n.1.

It did

not hold or base its denial of Plaintiff’s TRO on this statement.
Pattioay’s presence in Arizona, or during Plaintiff’s transit to
Arizona, does not alter the conclusion that a temporary
restraining order is not warranted here.
Second, Plaintiff provides no intervening change in
controlling law overruling Olim v. Wakinekona, 461 U.S. 238, 244-

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48 (1983), in which the Supreme Court held that prisoners have no
right to dictate the prison at which they are incarcerated, and
specifically, no right to remain in a Hawaii prison.

Plaintiff’s

transfer to an out-of-state prison with less than one year left
until his sentence expires does not violate his right to due
process or equal protection of the laws.

See id.; see also

Meachum v. Fano, 427 U.S. 215, 225; White v. Lambert, 370 F.3d
1002, 1013 (9th Cir. 2004).
Third, Fed. R. Crim. P. 43 has no application to
Plaintiff’s pending civil actions here or in the state court.
The civil rules apply to Plaintiff’s pending habeas petition
pending and numerous civil rights actions in this court.

See

Rule 11 of the Rules Governing Section 2254 Cases in the United
States District Courts (codified after 28 U.S.C. § 2254 (“Habeas
Rules”)) (providing that the “Federal Rules of Civil Procedure,
to the extent that they are not inconsistent with any statutory
provisions or [the habeas] rules, may be applied to a proceeding
under these rules”); Mayle v. Felix, 545 U.S. 644, 654 (2005);
see also Fed. R. Civ. P. 81(a)(4) (same).

To the extent that

there is a state rule that dictates that Plaintiff must remain in
Hawaii during civil proceedings, he may raise that question in
state court.

Olim v. Wakinekona and its progeny have not been

overruled, however, and this court is “bound to follow a
controlling Supreme Court precedent until it is explicitly

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overruled by that Court.”

United States v. Weiland, 420 F.3d

1062, 1079 n.16 (9th Cir. 2005) (citation omitted).
Fourth, Plaintiff still fails to demonstrate that he
complied with the rules and restrictions governing when a TRO may
be issued ex parte, as set forth in Fed. R. Civ. P. 65.
Moreover, Plaintiff’s claims in support of the TRO do not present
a serious question or show that he is in danger of irreparable
harm based on his transfer to Arizona or from Pattioay alleged
harassment.

Nor does he explain why his request for injunctive

relief against the Hawaii prison officials named in this suit is
not moot, or why, if he requires a restraining order or
injunction in Arizona, he cannot seek this relief in the proper
Arizona court.
Plaintiff provides no intervening change in controlling
law, new evidence, or a sufficient argument showing the need to
correct clear error or prevent manifest injustice relating to his
transfer and this court’s denial of his Motion for Temporary
Restraining Order.

Plaintiff’s Motion Under Rule 60(b), ECF #42,

is DENIED.
IT IS SO ORDERED.
//

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DATED AT HONOLULU, HAWAII, August 7, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tierney v. Torikawa, 1:12-cv-00056 LEK-RLP; ORDER DENYING MOTION UNDER RULE 60(b);
psas\recon\DMP\2012\Tierney 12-56 lek (6th R60 mot. re trnsf AZ)

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