Blankenship v. Shinn et al

Filing 122

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION re 120 . Signed by JUDGE LESLIE E. KOBAYASHI on 04/08/2016. -- Plaintiff's Motion for Reconsideration, filed on March 28, 2016, is HEREBY DENIED. The Co urt DIRECTS the Clerk's Office to enter final judgment and close this case. (eps)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 served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARK A. BLANKENSHIP, FED.
REG. #83718-022,

CIV. NO. 14-00168 LEK-KJM

Plaintiff,
vs.
WARDEN D. SHINN, CASE MANAGER
MR. SHELKO, 1-10 JOHN DOE,
Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
Before the Court is pro se Plaintiff Mark A.
Blankenship's ("Plaintiff") Motion for Reconsideration
("Motion"), filed on March 28, 2016.

[Dkt. no. 120.]

The Court

did not request any further briefing on this matter, and finds it
suitable for disposition without a hearing pursuant to Rule
LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai'i ("Local Rules").
After careful consideration of the Motion and the relevant legal
authority, Plaintiff's Motion is HEREBY DENIED for the reasons
set forth below.
BACKGROUND
The background of this case is well known to the
parties, and the Court will only repeat the facts relevant to the
instant Motion.

On March 15, 2016, the Court issues its Order

Granting Defendant Lee Shellko's Motion to Dismiss Second Amended

Complaint (“3/15/16 Order”).

[Dkt. no. 119.1]

In the 3/15/16

Order, the Court stated that “[t]he Third Amended Complaint[2]
fails to state a claim upon which relief can be granted; the
Court has provided Plaintiff with many opportunities to amend the
complaint; and Plaintiff has been unable to cure the defects in
the complaint.”

[3/15/16 Order at 12-13 (footnote omitted).]

The Court dismissed Plaintiff’s Third Amended Complaint with
prejudice.

[Id. at 13.]
STANDARD

This Court has stated that:
[T]he Motion for Reconsideration “must accomplish
two goals. First, a motion for reconsideration
must demonstrate reasons why the court should
reconsider its prior decision. Second, a motion
for reconsideration must set forth facts or law of
a strongly convincing nature to induce the court
to reverse its prior decision.” See Davis v.
Abercrombie, Civil No. 11-00144 LEK-BMK, 2014 WL
2468348, at *2 (D. Hawaii June 2, 2014) (citation
and internal quotation marks omitted). This
district court recognizes three circumstances
where it is proper to grant reconsideration of an
order: “(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.”

1

The 3/15/16 Order is also available at 2016 WL 1032781.

2

Plaintiff filed his Second Amended Complaint on November
27, 2015. [Dkt. no. 103.] In an entering order filed on January
5, 2016, the Court gave Plaintiff an opportunity to revise his
Second Amended Complaint. [Dkt. no. 109.] On January 19, 2016,
Plaintiff filed a second document titled Second Amended
Complaint. [Dkt. no. 110.] In the 3/15/16 Order, the Court
construed that document as Plaintiff’s Third Amended Complaint.
[3/15/16 Order at 7.]
2

Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL
1858585, at *1 (D. Hawaii May 1, 2013) (citing
School District No. 1J v. ACandS, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993)). “Mere disagreement
with a previous order is an insufficient basis for
reconsideration.” Davis, 2014 WL 2468348, at *3
n. 4 (citations and internal quotation marks
omitted).
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 1400135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
2014).
DISCUSSION
In the Motion, Plaintiff asserts that he misstated the
day of the week on which he arrived at the Federal Detention
Center in Honolulu, Hawai`i (“FDC”).
1-2.]

[Mem. in Supp. of Motion at

According to Plaintiff, he arrived at FDC on Wednesday,

June 6, 2012, and he went to court on Thursday, June 7, 2012.
Plaintiff argues that this corrected timeline means that he saw
Defendant Lee Shellko (“Defendant Shellko”) on June 8, 2012 –
before the fall.3

See id. at 2 (“Mr. Shellko[’]s defense all

along has been that he was gone before I returned from Court on
Friday.

Your Honor I made it clear as did intake that stairs

were beyond my ability to negotiate.

Mr. Shellko was informed by

intake of this on Thur June-7-2012 yet refused to listen.”).
Insofar as Plaintiff claims that this constitutes new evidence or

3

As the Court explained in the 3/15/16 Order, Defendant
Shellko’s name is misspelled in the case caption, but the Court
has used the correct spelling in previous orders, and will
continue to do so here. See 3/15/16 Order at 2 n.2.
3

an attempt to correct a clear error – and thus provides grounds
for the Court to grant the Motion, Plaintiff is incorrect.

In

its Order Granting Defendants’ Motion for Dismissal or Summary
Judgment of Defendants David Shinn and Lee Shellko, filed on
September 30, 2015 (“9/30/15 Order”), [dkt. no. 97,4] the Court
explained:
Plaintiff arrived at FDC on June 6, 2012, and was
assigned to the Special Housing Unit, which
consists of only one floor. Plaintiff went to
court at 10:07 a.m. on Thursday, June 7, 2012,
and, when he returned to FDC at 2:53 p.m., he was
moved to a general population unit and assigned a
lower bunk located on an upper tier. On June 9,
2012, Plaintiff fell down a flight of stairs.
Plaintiff was taken to Queen’s Medical Center
(“QMC”), and he returned early in the morning on
June 10, 2012. On June 11, 2012, Plaintiff was
moved to a lower tier.
[9/30/15 Order at 6-7 (citations and internal quotation marks
omitted).]

Moreover, the Court noted that “[i]t is undisputed

that Defendant Shellko finished work at 2:00 p.m. on June 7,
2012, and did not return until Monday, June 11, after Plaintiff’s
fall.”

[Id. at 9 (footnote and citation omitted).]

The Court,

thus, has already considered the timeline Plaintiff lays out in
the Motion.

Moreover, using that timeline, the Court dismissed

the Eighth Amendment claim against Defendant Shellko for failure
to state a claim.

4

See 9/30/15 Order at 10.

The 9/30/15 Order is also available at 2015 WL 5769222.
4

Plaintiff also questions whether the Court erred in
failing to grant default judgment in his favor after “the time to
respond to service was greatly ignored by Plaintiff.”
2.]

[Motion at

Plaintiff filed a document titled Motion Rule 55 on

October 17, 2014 (“Rule 55 Motion”).

[Dkt. no. 25.]

In his

Amended Order Denying Request for Entry of Clerk’s Default; and
Granting Extension of Time to Perfect Service, filed on
November 3, 2014 (“11/3/14 Order”), [dkt. no. 35,] the magistrate
judge construed the Rule 55 Motion as a motion “simultaneously
seeking entry of default and default judgment against Defendant
D. Shinn.”

[11/3/14 Order at 1.]

The magistrate judge concluded

that “service of the summons and Complaint has not been completed
and Plaintiff’s Motion for entry of default is denied,” and
“[b]ecause entry of default is unwarranted, the Court will not
consider Plaintiff’s request for default judgment.”
(emphasis omitted).]

[Id. at 4

Fed. R. Civ. P. 72 states, in pertinent

part:
(a) Nondispositive Matters. When a pretrial
matter not dispositive of a party’s claim or
defense is referred to a magistrate judge to hear
and decide, the magistrate judge must promptly
conduct the required proceedings and, when
appropriate, issue a written order stating the
decision. A party may serve and file objections
to the order within 14 days after being served
with a copy. A party may not assign as error a
defect in the order not timely objected to. The
district judge in the case must consider timely
objections and modify or set aside any part of the
order that is clearly erroneous or contrary to
law.
5

See also Local Rule LR74.1 (explaining that any appeal of a
magistrate judge’s non-dispositive pretrial order to the district
judge must be filed within fourteen days).

Plaintiff did not

file a motion for reconsideration of the 11/3/14 Order, and
Plaintiff cannot, almost a year and a half later, use the instant
Motion to appeal the magistrate judge’s decision.

Moreover, the

instant Motion relates to the 3/15/16 Order, which concerned only
Plaintiff’s Eighth Amendment claim against Defendant Shellko.5
The 11/3/14 Order noted that “Plaintiff makes no argument
regarding Defendant Shel[l]ko, and the record does not reflect
that Shel[l]ko has been served in any manner.”
3 n.1.]

[11/3/14 Order at

Plaintiff’s assertion in the instant Motion that “by law

I should have been granted judgment” is therefore not only
untimely, but also irrelevant to the claims against Defendant
Shellko.
Finally, as he has done in the previous filings with
the Court, Plaintiff mentions his military service and his
current health problems.

The Court greatly appreciates

Plaintiff’s service to this country.

It is also clear to the

Court that Plaintiff’s present medical conditions are very
serious.

This, however, does not change the fact that there is

no evidence that, upon admission to FDC on June 6, 2012,

5

In the 9/30/15 Order, the Court dismissed with prejudice
all of the claims against Defendant David Shinn. See 9/30/15
Order at 12.
6

Plaintiff had a serious medical condition that required a bunk on
a lower tier.

The Court FINDS that Plaintiff has provided no

reason for the Court to reconsider its prior decision, and
Plaintiff’s Motion is HEREBY DENIED.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Reconsideration, filed on March 28, 2016, is HEREBY DENIED.

The

Court DIRECTS the Clerk’s Office to enter final judgment and
close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 8, 2016.

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

MARK A. BLANKENSHIP VS. WARDEN D. SHINN, ET AL; CV 14-00168
LEK-KJM; ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

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