Cottle et al v. Gillispie et al

Filing 83

ORDER that plaintiff Sean Cottles motion to reargue 79 is DENIED. Signed by Judge James C. Mahan on 10/25/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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SEAN COTTLE, et al.,

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Plaintiff,

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vs.

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DOUG GILLESPIE, et al.,

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Case No. 2:10-CV-00271-JCM-(PAL)

Defendants.

ORDER

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Presently before the court is pro se plaintiff Sean Cottle’s motion to reargue the court’s order

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(doc. #79) dismissing plaintiff’s case in part by dismissing defendant Gillespie and other defendant

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officers in their official capacities (doc. # 69). Defendants have responded. (Doc. #80). Plaintiff did

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not file a reply.

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On July 6, 2011, the court entered an order granting in part and denying in part defendants’

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motion to dismiss (doc. #69). The court dismissed any claims asserted against Officers Halasi and

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O’Daniel in their official capacities, under the doctrine of sovereign immunity, because suing an

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officer in his or her official capacity is equivalent to suing a governmental or municipal entity itself.

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See July 6, 2011 order, Doc. #69 (citing Kentucky v. Graham, 473 U.S. 159 (1985)). In addition, the

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court dismissed claims against Gillespie in his official capacity because the claims against Gillespie

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were duplicative of the plaintiff’s claims against LVMPD. Id. (citing Scott v. Las Vegas Metro

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Police Dep’t., 2:10-CV-01900-ECR, 2011 WL 2295178 (D. Nev. June 8, 2011)). Further, the court

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dismissed claims against Gillespie in his individual capacity because plaintiff failed to allege any

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personal involvement by Gillespie in plaintiff’s arrest or incarceration, or that Gillespie had

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negligently trained or supervised the officers. See id.

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On July 18, 2011, plaintiff filed a motion to reconsider the July 6, 2011, order. (Doc. #70).

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On July 25, 2011, prior to this court’s ruling on the motion to reconsider, plaintiff filed a notice of

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appeal, seeking review of the July 6, 2011, order by the Ninth Circuit Court of Appeals. On

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September 7, 2011, the court entered an order denying plaintiff’s motion to reconsider because the

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plaintiff’s appeal divested the court of jurisdiction to reconsider the July 6, 2011, order. (Doc. #78).

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On October 18, 2011, the court granted plaintiff’s motion seeking to voluntarily withdraw his

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appeal. (Doc #82). Thus, the court will look at the instant motion as a renewed motion to reconsider

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because this court now has jurisdiction.

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“Reconsideration is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an

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intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993); see Fed. R. Civ. P. 59(e); see also Fed. R. Civ. P. 60(b). Furthermore, review of

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dismissal for failure to state a claim is limited to the contents of the complaint. Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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The plaintiff fails to present any new law, new facts, or new evidence indicating that any of

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the circumstances enumerated by the Ninth Circuit are present here. In the present motion for

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reconsideration, plaintiff asks this court to reconsider its order (doc. #69), because Gillespie, must

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be held accountable for the conduct of his subordinates. Plaintiff, however, has failed to provide any

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basis for this court to reconsider its previous order. Accordingly, this court must again deny the

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motion to reconsider.

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Therefore,

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...

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...

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...

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...

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IT IS HEREBY ORDERED ADJUDGED AND DECREED that plaintiff Sean Cottle’s
motion to reargue (doc. #79) be, and the same hereby is, DENIED.
DATED October 25, 2011.

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_________________________________
JAMES C. MAHAN
United States District Judge

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