Tierney v. Hamada et al

Filing 83

ORDER DENYING MOTION UNDER RULE 60(b) OF THE FEDERAL RULES OF CIVIL PROCEDURE AND DENYING MOTION TO CLARIFY re 78 ; 79 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/16/12. (emt, )CERTIFICATE OF SERVICEParticipan ts registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney shall be served by first class mail at the address of record on October 17, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,
#A0201434,

)
)
)
Plaintiff,
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vs.
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FRANCIS HAMADA, et al.,
)
)
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Defendants.
_____________________________ )

CIV. NO. 12-00117 SOM/RLP
ORDER DENYING MOTION UNDER
RULE 60(b) OF THE FEDERAL
RULES OF CIVIL PROCEDURE AND
DENYING MOTION TO CLARIFY

ORDER DENYING MOTION UNDER RULE 60(b) OF THE FEDERAL RULES OF
CIVIL PROCEDURE AND DENYING MOTION TO CLARIFY
Plaintiff moves for relief from the September 27, 2012,
judgment revoking his in forma pauperis status and dismissing
this action.

See Mot., ECF #78; Ord. ECF #76.

seeks clarification of the order.

Plaintiff also

Mot., ECF #79.

Plaintiff’s

Motions are DENIED.
I.

Legal Standard
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).
A.

Reconsideration
Plaintiff moves for reconsideration based on “mistake,

neglect, fraud, and new evidence.”

Mot., ECF #78.

Plaintiff,

who is incarcerated in Arizona, states that he is in extreme pain
from his toothache and, on September 11, 2012, had a cancerous
tumor removed.

Plaintiff demands again that the court order

dental care for him.
Although Plaintiff’s recent operation is unfortunate,
it does not constitute new evidence, mistake, fraud, or neglect
sufficient to persuade the court to reconsider its decision to
revoke in forma pauperis status and dismiss this case.

First,

Plaintiff filed a Reply to the State’s Motion to Revoke IFP
Status two weeks after his operation and made no mention of it in
his Reply.

It does not constitute new evidence.
Second, Plaintiff fails to explain what bearing this

medical procedure has on his claims against Dr. Hamada, claims
that allegedly occurred at the Oahu Correctional Facility more
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than a year ago.

Rather, it appears that Plaintiff is raising

new claims concerning his medical condition.
in Arizona, where he is confined.

Plaintiff may do so

Plaintiff, however, fails to

provide an intervening change in controlling law, competent new
evidence that was unavailable before the court, or a sufficient
argument showing the need to correct clear error or prevent
manifest injustice relating to this court’s denial of his
previous motion for reconsideration, or relating to the Order
adopting the F&R to deny the petition.

Plaintiff’s Motion Under

Rule 60(b), ECF #136, is DENIED.
B.

Clarification
Plaintiff claims that this court repeatedly called him

discriminatory names and stated that he was untruthful.
court disagrees.

The

This court has never directed any derogatory

epithet at Plaintiff, and he offers no evidence of even a single
instance when this actually happened.

Moreover, although the

court found that Plaintiff was not in imminent danger of serious
physical injury when he commenced this action based on Dr.
Hamada’s dental treatment, the court did not discredit
Plaintiff’s allegation that he was in pain.

Rather, the court

found that Plaintiff’s pain was within his own control to end,
and that the continuance of any pain resulted from his own
actions.

Plaintiff, at all times relevant to this action, had

the ability to alleviate his pain by accepting the dental care

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that was recommended.

Thus, although Plaintiff’s claims

regarding his pain may have been truthful, they are nonetheless
insufficient to show imminent danger of serious physical injury
in this case.

Plaintiff’s “Motion to Clarifiey” [sic] is DENIED.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 16, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Tierney v. Hamada, et al., Civ. No. 12-00117 SOM/RLP; ORDER DENYING MOTION
UNDER RULE 60(b) OF THE FEDERAL RULES OF CIVIL PROCEDURE AND DENYING MOTION TO
CLARIFY; G:\docs\prose attys\Recon\DMP\2012\Tierney 12-117 som (R60 &
clarify)).wpd

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