Helfrich v. State of Nevada, Ex. Rel. et al

Filing 7

ORDER Denying Plaintiff's 6 Motion for District Judge to Reconsider 3 Order. Signed by Chief Judge Gloria M. Navarro on 10/17/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PETER J. HELFRICH,

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Plaintiff,
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v.
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STATE OF NEVADA ex rel, et al.,
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Defendants.
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___________________________________ )

2:16-cv-00574-GMN-GWF
ORDER

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I.

DISCUSSION

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On September 13, 2016, this Court issued a screening order dismissing the complaint
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in its entirety because the complaint was duplicative. (ECF No. 3 at 4). The Court noted that
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Plaintiff had raised the same allegations in Count 6 of the amended complaint in Helfrich v.
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Cox, 2:15-cv-384-JCM-PAL.

(Id.).

The Court found that the duplicative litigation was

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malicious and constituted Plaintiff’s third strike under 28 U.S.C. § 1915(g). (Id. at 4-5). On
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September 14, 2016, the Clerk of Court entered judgment. (ECF No. 5).
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On September 28, 2016, Plaintiff filed a motion for reconsideration. (ECF No. 6). In
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the motion, Plaintiff argues that he should not have a strike because he did not know that the
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Court had filed the instant action because he did not receive confirmation from the Court. (Id.
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at 4). Plaintiff also states that he had filed a motion to recuse Judge Mahan but then Judge
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Mahan later “fairly” screened his amended complaint in the other case. (ECF No. 3-4).
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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.” Frasure v. United States, 256 F.Supp.2d

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1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with

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newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands,

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to

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re-litigate the same issues and arguments upon which the court already has ruled.” Brown v.

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Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

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The Court denies Plaintiff’s motion for reconsideration. Plaintiff has not established that

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the Court had committed clear error, that there was an intervening change in controlling law,

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or that there is newly discovered evidence. In fact, after reviewing the procedural history of

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both cases, it appears that Plaintiff was dissatisfied with Judge Mahan’s July 5, 2015

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screening

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2:15-cv-00384-JCM-PAL, ECF No. 2). Plaintiff filed his amended complaint on August 7,

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2015. (ECF No. 4). On November 16, 2015, Plaintiff filed a motion to recuse Judge Mahan

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from the case. (ECF No. 12).

order

directing

Plaintiff

to

file

an

amended

complaint.

(See

On March 15, 2016, Plaintiff filed the instant case which contained the same allegations

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in

Count

6

of

the

amended

complaint

in

Judge

Mahan’s

case.

(See

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2:16-cv-00574-GMN-GWF, ECF No. 1). Approximately one month later, on April 11, 2016,

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Judge Mahan issued a screening order on Plaintiff’s amended complaint and permitted the

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allegations in Count 6 to proceed. (See 2:15-cv-00384-JCM-PAL, ECF No. 19 at 15). Plaintiff

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did not file any notice with the Court withdrawing the instant lawsuit.

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Plaintiff argues that he did not know that the Court had received his lawsuit because

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he did not receive confirmation from the Court. The Court finds this argument meritless. The

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Court has reviewed Plaintiff’s federal court filing history and, of the eleven cases that Plaintiff

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has filed in federal court, Plaintiff has only received two confirmation letters from the Court.

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In June 2016, the Court started sending plaintiff-inmates inmate advisory letters after the Court

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received initiating case documents from plaintiff-inmates. Plaintiff’s two confirmation letters

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are dated after June 1, 2016. As such, the Court never sent Plaintiff any confirmation letters

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prior to June 2016. Plaintiff cannot now allege that he did know about one of the eight
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previous lawsuits that he filed with this Court.

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reconsideration. Plaintiff continues to have three strikes.

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II.

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The Court denies the motion for

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

No. 6) is denied.

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DATED: This _____ day of October, 2016.

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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