Long v. Neven et al

Filing 12

ORDER Denying 8 Plaintiff's Motion for District Judge to Reconsider 4 Screening Order. IT IS FURTHER ORDERED that no further motions shall be filed by the parties during the 90-day mediation stay, pursuant to the Courts order of May 13, 2013. Signed by Judge Miranda M. Du on 06/18/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FELIX LONG,

Case No. 2:13-cv-00699-MMD-GWF

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Plaintiff,

ORDER

v.
DWIGHT NEVEN, et al.,
Defendants.

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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by

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plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections. On

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May 13, 2013, the Court filed a screening order. (Dkt. no. 4.) On May 22, 2013, plaintiff

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filed a motion for reconsideration of that order pursuant to Rule 59 of the Federal Rules

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of Civil Procedure. (Dkt. no. 8.)

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provides that any “motion to alter or amend a judgment shall be filed no later than 28

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days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P. 59(e)

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“should not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir.

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2001), quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Federal

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courts have determined that there are four grounds for granting a Rule 59(e) motion:

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(1) the motion is necessary to correct manifest errors of law or fact upon which the

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judgment is based; (2) the moving party presents newly discovered or previously

Rule 59(e) of the Federal Rules of Civil Procedure

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unavailable evidence; (3) the motion is necessary to prevent manifest injustice; or (4)

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there is an intervening change in controlling law. Turner v. Burlington Northern Santa

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Fe R. Co., 338 F.3d 1058 (9th Cir. 2003).

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In the instant case, this Court properly entered an order dismissing plaintiff’s

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claims for damages against defendants in their official capacities. The Court allowed

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plaintiff’s individual liability claims for damages against defendants to proceed. (Dkt. no.

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4.) In his motion to vacate judgment, petitioner has not identified any mistake,

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intervening change in controlling law, or other factor that would require altering the

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Court’s screening order. Petitioner has not shown that manifest injustice resulted from

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dismissal of the official capacity claims for damages. Petitioner also has not presented

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newly discovered or previously unavailable evidence. Petitioner has failed to make an

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adequate showing under either Rule 59(e) to justify granting his motion for

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reconsideration.

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IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (dkt. no.
8) is DENIED.
IT IS FURTHER ORDERED that no further motions shall be filed by the parties
during the 90-day mediation stay, pursuant to the Court’s order of May 13, 2013.

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DATED THIS 18th day of June 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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