Lagmay v. Nobriga et al

Filing 33

ORDER DENYING PLAINTIFF'S OBJECTIONS AS CONSTRUED AS A MOTION FOR RECONSIDERATION re 31 . Signed by JUDGE LESLIE E. KOBAYASHI on 05/10/2016. (eps)CERTIFICATE OF SERVICEParticipants registered to re ceive 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
HENRY LAGMAY, #A0191119,
Plaintiff,
vs.
MRS. SHELLY NOBRIGA, et
al.,
Defendants.

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CIV. NO. 15-00463 LEK/KJM
ORDER DENYING PLAINTIFF’S
OBJECTIONS AS CONSTRUED AS
A MOTION FOR
RECONSIDERATION

ORDER DENYING PLAINTIFF’S OBJECTIONS AS
CONSTRUED AS A MOTION FOR RECONSIDERATION
I. INTRODUCTION
On April 5, 2016, the court dismissed Plaintiff’s
prisoner civil rights complaint and action with
prejudice for failure to state a claim, pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1).
Doc. No. 29 (“April 5 Order”).

See Order,

Plaintiff objects to

the April 5 Order under Rule 46 of the Federal Rules of
Civil Procedure.

See Objecting to Order, Doc. No. 31.

Plaintiff states that he raises this objection before
Defendants can enforce the court’s judgment or execute
a “Stay of Proceedings,” and to “Secure; A Formal

Exception to [the April 5 Order] In (The 9th Cir. Court
of Appeals) Or (U.S. Supreme Court).”

Id., PageID #236

(capitalization and punctuation in original).
Because the court dismissed Plaintiff’s action with
prejudice sua sponte under the provisions of the Prison
Litigation Reform Act of 1995, and there was no trial
or hearing, the court construes Plaintiff’s objections
as a Motion for Reconsideration brought pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure.
See Hernando v. Hamamoto, 2013 WL 6485247, at *1
SOM/BMK (D. Haw. Dec. 9, 2013) (construing motion
brought under Rule 46 objecting to grant of summary
judgment as motion for reconsideration).

Plaintiff’s

Motion for Reconsideration is DENIED.
I.
A.

LEGAL STANDARDS

Rule 46. Objecting to a Ruling or Order
Rule 46 states:
A formal exception to a ruling or order is
unnecessary. When the ruling or order is
requested or made, a party need only state the
action that it wants the court to take or
objects to, along with the grounds for the
request or objection. Failing to object does
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not prejudice a party who had no opportunity to
do so when the ruling or order was made.
Fed. R. Civ. P. 46
B.

Reconsideration Under Rule 59(e)
When a ruling has resulted in final judgment or

order -- as the April 5 Order did -- a motion for
reconsideration that is made within twenty-eight days
after entry of judgment is normally construed as a
motion to alter or amend judgment under Federal Rule of
Civil Procedure 59(e).

Sch. Dist. No. 1J Multnomah

Cty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.
1993).
Amending a judgment after entry is “an
extraordinary remedy which should be used sparingly.”
McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.
1999) (en banc) (per curiam).

A Rule 59(e) motion may

be granted if:
(1) such motion is necessary to correct
manifest errors of law or fact upon which the
judgment rests; (2) such motion is necessary to
present newly discovered or previously
unavailable evidence; (3) such motion is
necessary to prevent manifest injustice; or (4)
the amendment is justified by an intervening
change in controlling law.
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Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th
Cir. 2011).

In unusual circumstances, a court may

consider other grounds for amending or altering a
judgment under Rule 59(e).

Id. (allowing amendment for

clerical errors).
III.

DISCUSSION

Plaintiff alleges the April 5 Order shows a lack of
respect for him because he is a prisoner and the
victim.

Id., PageID #236-38.

He moves for relief

under Rule 46 to preserve his objections to the April 5
Order for an appeal to the Ninth Circuit Court of
Appeals.

Rule 46 governs objections at trial and has

no application here.

Hernando, 2013 WL 6485247, at *1.

To the extent it was meant as a Motion for
Reconsideration, Plaintiff provides no argument
justifying reconsideration of the April 5 Order and the
court discerns none.

Plaintiff raised the same claims

he raises in this action in Civ. No. 15-00166 DKW/RLP,
where they were carefully considered and denied.
id., Doc. No. 40.

When Plaintiff raised the same

claims in this action, the court again reviewed
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See

Plaintiff’s claims, determined they failed to state a
cognizable claim for relief, and dismissed them with
leave to amend.
2016).

Order, Doc. No. 21 (dated Jan. 12,

Plaintiff filed an amended complaint without

regard to the court’s previous two explanations why the
claims were insufficient to state a claim.
Doc. No. 26.

Am. Compl.,

The court reviewed his claims in the

Amended Complaint de novo, determined that the amended
pleading did not cure the defects set forth in its
previous order, and dismissed the Amended Complaint
with prejudice on April 5, 2016.

Doc. No. 29.

Plaintiff has therefore been given three opportunities
to present these claims to the court, and after
thoughtful consideration, they were repeatedly denied.
Plaintiff raises no newly discovered and previously
unavailable evidence, fails to identify manifest errors
of law or fact or an intervening change in law, and
details no facts showing manifest injustice in this
court’s decision to dismiss this action with prejudice.
Therefore, Plaintiff fails to persuade the court to
reconsider its April 5 Order.
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See Hele Ku KB, LLC v.

BAC Home Loans Serv., 873 F. Supp. 2d 1268, 1289 (D.
Haw. 2012).
IV.

CONCLUSION

Plaintiff’s Objections to the April 5 Order,
construed as a Motion for Reconsideration, are DENIED.
Plaintiff may raise his objections to the Ninth Circuit
Court of Appeals.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 10, 2016.

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

Lagmay v. Nobriga, 1:15-cv-00463 LEK/KJM; Recon 2016 Lagmay 15-463 lek

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