Lyons v. Dicus et al

Filing 7

ORDER denying 6 Motion for District Judge to Reconsider 3 Order on Motion/Application to Proceed in forma pauperis. Signed by Judge Andrew P. Gordon on 4/13/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PHILLIP J. LYONS,

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Case No. 2:14-cv-1813-APG-VCF
Plaintiff,

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v.

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ORDER

A. DICUS et al.,

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Defendants.

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I.

DISCUSSION

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On March 16, 2015, this Court entered a screening order dismissing the

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complaint in its entirety, with prejudice, as amendment would be futile. (Dkt. #3 at 8).

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The Clerk of the Court entered judgment that same day. (Dkt. #5). In the complaint,

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Plaintiff had alleged claims for unsafe prison conditions, retaliation, and denial of access

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to the courts because Defendant Correctional Officer Dicus had referred to grievances

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as “snitch kites.” (See dkt. #3 at 4-5). Based on that remark, Plaintiff refused to take a

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grievance because being viewed as a snitch in prison posed a substantial risk to

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Plaintiff’s health and safety. (Id. at 4). The Court found that Plaintiff had failed to state

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any claims because Plaintiff had failed to: (a) make any allegations that the term “snitch

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kite” had placed a serious threat to Plaintiff’s life; (b) establish that the use of the term

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“snitch kite” was an adverse action under these circumstances; and (3) establish that

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the term “snitch kite” prevented Plaintiff from accepting a grievance. (Id. at 5-7).

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On March 26, 2015, Plaintiff filed a motion for reconsideration. (Dkt. #6). In the

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motion, Plaintiff argues that the Court committed clear error in dismissing his complaint

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because the Court “completely overlooked Defendant Dicus’s actual motive for labeling

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prison grievance forms ‘snitch kites.’” (Id. at 3, 5). Plaintiff argues that his complaint

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alleged that Dicus knew that a prisoner being perceived as a “snitch” posed a

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substantial risk to a prisoner’s health and safety. (Id. at 5-6).

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A motion to reconsider must set forth “some valid reason why the court should

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reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to

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persuade the court to reverse its prior decision.”

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F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1)

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is presented with newly discovered evidence, (2) committed clear error or the initial

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

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law.” Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for

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reconsideration is not an avenue to re-litigate the same issues and arguments upon

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which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d

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1280, 1288 (D. Nev. 2005).

Frasure v. United States, 256

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The arguments in the motion for reconsideration are the same arguments that

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Plaintiff made in his complaint and that the Court considered in its initial screening

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order. As such, the Court denies Plaintiff’s motion for reconsideration.

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II.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion for reconsideration

(Dkt. #6) is denied.
Dated: April 13, 2105.

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UNITED STATES DISTRICT JUDGE

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