Foley v. Pont et al

Filing 168

ORDER Denying 161 Plaintiff Michael Foley's Motion for District Judge to Reconsider Order. Signed by Judge James C. Mahan on 6/18/2013. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL FOLEY,

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2:11-CV-1769 JCM (VCF)

Plaintiff(s),

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v.

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MICHELLE PONT, et al.,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff Michael Foley’s (“Foley”) motion for reconsideration.

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(Doc. # 161). Defendants Shera Bradley (“Bradley”) and Georgina Stuart (“Stuart”) responded.

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(Docs. # 163, 164, respectively).

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respectively).

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I.

Plaintiff replied to both responses. (Docs. # 166, 165,

Factual Background

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This case arises out of allegations of conspiracy to deprive plaintiff of his constitutional

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rights. In October 2008, plaintiff’s children “E,” “M,” and “T”, were removed from plaintiff’s

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custody following an investigation by child protective services (“CPS”). Subsequent family court

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orders have continued to restrict plaintiff’s relationship with his children. Plaintiff alleges that

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Stuart, a family child protective services investigator, commenced an investigation and proceedings

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that resulted in plaintiff’s loss of association with his children. Plaintiff argues that in November

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2008, Stuart lied and falsified reports to the district attorney about plaintiff’s abuse of his daughter,

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“T”. (Doc. # 55, ¶ 32).

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James C. Mahan
U.S. District Judge

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In April 2009, during the pendency of family court proceedings, Bradley performed a

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psychological evaluation of plaintiff. Bradley’s report concluded that if “reunification is sought with

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his children, [plaintiff] should participate in weekly individual psychotherapy to teach him to take

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responsibility for his actions and to develop more appropriate responses in interpersonal situations.”

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(Doc. # 55, ¶ 77). Plaintiff denies these conclusions.

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In a previous order, the court granted Stuart’s motion for summary judgment and denied

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plaintiff’s second motion for leave to amend. (Doc. # 160). Plaintiff asks the court to reconsider

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the court’s order regarding both the summary judgment and motion for leave to amend. (Doc. #161).

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II.

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Legal Standard
Under Fed.R.Civ.P. 60(b) the court may relieve a party from a final judgment or order for

the following reasons:

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(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(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of 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 judgment.

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Motions for reconsideration “should not be granted, absent highly unusual circumstances.”

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Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “Reconsideration is

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appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear

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error or the initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” School Dist. No. 1J v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Kona, 229

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F.3d at 889-90 (listing the same three factors).

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A “motion for reconsideration is not an avenue to re-litigate the same issues and arguments

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upon which the court has already ruled.” Brown v. Gold, 378 F. Supp 2d 1280, 1288 (D. Nev. 2005).

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...

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...

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James C. Mahan
U.S. District Judge

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III.

Discussion

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1.

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Plaintiff seeks reconsideration of the denial of the motion for leave to amend his complaint.

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(See doc. # 161). Plaintiff’s proposed second amended complaint alleges conspiracy claims against

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Bradley. (Doc. # 161). These conspiracy claims are federal claims which the court has already

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dismissed against Bradley with prejudice. (Doc. #160). Plaintiff urges the court to reconsider these

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claims as alleged against Bradley. (Doc. # 161).

Motion to amend

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Plaintiff cannot seek reconsideration of claims that have been dismissed with prejudice.

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Plaintiff’s proposed second amended complaint is defective because of the inclusion of these claims.

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The court declines to reconsider even potentially viable claims because the proposed second

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amendment complaint failed to follow this court’s order and included claims that were not permitted

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to be re-alleged.

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Additionally, plaintiff has not brought forth any new evidence relating to the conspiracy

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claims and has not pointed to any intervening change in the controlling law. Therefore, the court

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does not find that plaintiff has met the requisite standard to warrant reconsideration of this court’s

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prior order.

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2.

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Plaintiff argues that there is an issue of material fact as to whether his child, “T”, was actually

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physically injured. (See doc. # 161). Plaintiff argues this issue of material fact precludes the grant

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of summary judgment in favor of Stuart. (Id.).

Motion for summary judgment

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At summary judgment, plaintiff did not contradict the facts the court relied upon in granting

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summary judgment in favor of Stuart. (See Doc. # 120). Because these facts were not disputed by

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plaintiff, and because plaintiff does not present any newly discovered evidence in his motion for

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reconsideration (doc. # 161), the facts remain undisputed–leaving no genuine issue of material fact

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to preclude finding in favor of Stuart. And although, plaintiff alleged that Stuart was bribed by the

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Ponts to launch the CPS investigation into plaintiff’s conduct, there was no factual support for these

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allegations.

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James C. Mahan
U.S. District Judge

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Because the court is not presented with any new evidence and because there has not been any

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intervening change in controlling law, the court finds reconsideration of the order as to summary

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judgment in favor of Stuart unwarranted.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff Michael Foley’s

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motion for reconsideration (doc. # 161) be, and the same hereby, is DENIED.
DATED June 18, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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