Houle v. State Of Nevada et al

Filing 25

ORDER Denying 23 Motion for Relief from Order; and Denying 24 Motion to Appoint Counsel. The Court has ruled, now three times. This case is closed. Signed by Judge James C. Mahan on 4/18/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DENNIS PATRICK HOULE,
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Plaintiff,

2:09-cv-02442-JCM-PAL

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vs.
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ORDER
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STATE OF NEVADA, et al.
Defendants.

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This closed pro se prisoner civil rights action comes before the court on plaintiff’s

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motion (#23) for relief from order under Rule 60(a) of the Federal Rules of Civil Procedure and

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his motion (#24) for appointment of counsel.

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Background

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Plaintiff seeks for a second time to set aside the judgment of dismissal entered herein.

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Final judgment was entered on December 17, 2010. The time to seek relief under Rule 59

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expired on January 14, 2011. The time to file a timely notice of appeal expired on Tuesday,

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January 18, 2011, after the federal holiday. Plaintiff’s first motion for relief for judgment was

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signed on January 20, 2011, after the expiration of both the time to seek relief under Rule 59

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and the time to appeal. The court denied the motion on January 31, 2011. The present

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second motion for relief from judgment was mailed for filing on or about March 17, 2011.

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In the amended complaint filed prior to the dismissal, plaintiff alleged that he had been

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improperly denied parole following a parole revocation and thus confined improperly. He

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requested, inter alia, that his case be deemed complete based upon time served and that he

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be awarded compensatory damages of $1.6 million dollars per year since his allegedly illegal

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confinement. The court dismissed the action as not cognizable under § 1983 because

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plaintiff plainly was challenging the legality of his confinement following upon the denial of

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parole. The court concluded that allowance for leave to amend would be futile given that

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plaintiff could not challenge the legality of his confinement under § 1983.

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In the amended complaint submitted with the first motion for relief from judgment,

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plaintiff did not materially alter the allegations that he had relied upon previously to claim that

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he had been illegally confined. He sought to alter his requests for relief to seek a judgment

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declaring that his rights were violated, declaring that the parole hearing be deemed invalid,

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and ordering the parole board to rehear the matter.

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In its order denying the motion for relief from judgment, the court noted initially that

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plaintiff impermissibly was seeking to use a Rule 60 motion to seek to vacate a final judgment

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based upon alleged legal error after the time to appeal had expired. The court further

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concluded, however, that its prior determination was not erroneous that allowance for further

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leave to amend would be futile. First, the court was not sanguine that plaintiff could make his

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claims cognizable under § 1983 by seeking only prospective relief based upon underlying

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allegations that continued to necessarily challenge the legality of his past confinement.

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Second, the court noted that plaintiff in any event failed to state a claim for declaratory and

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injunctive relief given that, inter alia, plaintiff had no protected liberty interest in the Nevada

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parole proceedings. Regardless of the relief sought, plaintiff still must present a viable claim,

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which he did not. The court accordingly adhered to its prior determination that allowance of

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further leave to amend would be futile. #22, at 2-5.
Discussion

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Petitioner again moves for relief for judgment. He now seeks relief under Rule 60(a)

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on the basis of alleged “clerical error.” Plaintiff urges that the court committed “clerical error”

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when it concluded that plaintiff could not seek monetary damages from a state officer

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defendant in his official capacity.

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The problems with plaintiff’s argument are threefold.
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First, an alleged legal error in a conclusion that the court intended to make does not

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constitute a “clerical error” for purposes of Rule 60(a). See,e.g., Blanton v. Anzalone, 813

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F.2d 1574, 1577 & n.2 (9th Cir. 1987). Rule 60(a) is not a vehicle for challenging the legal

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correctness of rulings made by the district court.

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Second, the court’s dismissal of the case did not hinge upon whether plaintiff could

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pursue a state officer defendant in his official capacity for monetary damages. In the order

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of dismissal, the court held that plaintiff’s claims were not cognizable under § 1983 because

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plaintiff plainly was challenging the legality of his confinement following upon the denial of

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parole. The court further observed in passing in a footnote that the amended complaint,

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which then sought monetary damages, was deficient in a number of additional respects,

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including that “plaintiff may not recover monetary damages from the defendant officials in their

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official capacity.” The court noted that claims for monetary damages from the defendants in

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their official capacity are barred by state sovereign immunity and that state officials sued in

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their official capacity for monetary damages in any event are not “persons” subject to suit

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under § 1983. #19, at 3 n.1. Even if the court were wrong in this regard, which, as discussed

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below, it was not, the complaint nonetheless was subject to dismissal. The basis for dismissal

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was not that plaintiff sued a state official in his official capacity for monetary damages.

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Rather, the court dismissed the case because plaintiff did not have a viable claim for relief in

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the circumstances presented, against any defendant, in any capacity.

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Third, plaintiff’s contention that the court committed error, clerical or otherwise, in its

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statement of the law is completely wrong. Plaintiff urges that the decision in Doe v. Lawrence

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Livermore National Laboratory, 131 F.3d 836, 839 (9th Cir. 1997), establishes “[t]hat a state

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official in his official capacity is considered a ‘person’ subject to suit under ‘1983.’” #23, at

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electronic docketing page 4. The cited case instead states only that a state official may be

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sued in his official capacity “for prospective injunctive relief.” 131 F.3d at 839 (emphasis in

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original). This court’s statement that plaintiff could not recover monetary damages from the

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defendants in their official capacity was, and remains, entirely correct.

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Plaintiff’s reliance upon Rule 60(a) for relief thus is entirely misplaced.
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This case was dismissed, again, because plaintiff does not present a viable procedural

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due process or equal protection claim, whether for monetary damages or prospective relief,

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based upon the denial of his parole. He cannot state a claim in the first instance in the

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context presented. See #22, at 3-5.

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Plaintiff further maintains that he has had difficulty accessing the prison law library.

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The prison “kites” that he attaches with his motion demonstrate, in the main, that he has

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requested and been granted access to the law library at reasonable intervals taking into

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account that plaintiff is in a controlled prison environment. In only one instance was time or

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delay a factor vis-à-vis a deadline. According to the kite, plaintiff requested access to the

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library on January 13, 2011, “to make copies and mail my amended 1983. ” #23, at electronic

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docketing page 7. Plaintiff was not able to get into the library to mail his submission until on

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or after January 20, 2011. See #22, at 1. Plaintiff made his request one day before the

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January 14, 2011, deadline for seeking relief under Rule 59 and five days before the time for

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filing an appeal expired. Plaintiff did not state in his kite that he was seeking to make a Rule

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59 or appeal deadline; he referred only to his “amended motion” being late after January 17th.

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Consistent with the kite, he did not seek Rule 59 relief or file an appeal thereafter.

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Plaintiff cannot wait until the eleventh hour to request law library access in a prison

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environment. In all events, the court addressed the underlying merits of plaintiff’s contentions

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on his first motion. The court did not simply decline to consider the motion solely on the

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ground that plaintiff was seeking to pursue a claim of legal error after the Rule 59 and appeal

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deadlines had passed. Again, plaintiff, at bottom, just does not have a claim for relief in the

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circumstances presented. He has not been prejudiced by the prison law library’s inability to

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more promptly accommodate his last minute request for access for the stated purpose of

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mailing an amended complaint.

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Plaintiff’s motion for appointment of counsel, his second, will be denied. This case is
closed, and plaintiff has no viable claim for relief.
IT THEREFORE IS ORDERED that plaintiff’s motion (#23) for relief from order is
DENIED.
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IT FURTHER IS ORDERED that plaintiff’s motion (#24) for appointment of counsel
also is DENIED.
The court has ruled, now three times. This case is closed.
DATED: April 18, 2011.

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_________________________________
JAMES C. MAHAN
United States District Judge

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