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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 PETER J. HELFRICH, ) ) Plaintiff, ) ) v. ) ) STATE OF NEVADA ex rel, et al., ) ) Defendants. ) ) ___________________________________ ) 2:16-cv-00574-GMN-GWF ORDER 14 I. DISCUSSION 15 On September 13, 2016, this Court issued a screening order dismissing the complaint 16 in its entirety because the complaint was duplicative. (ECF No. 3 at 4). The Court noted that 17 Plaintiff had raised the same allegations in Count 6 of the amended complaint in Helfrich v. 18 Cox, 2:15-cv-384-JCM-PAL. (Id.). The Court found that the duplicative litigation was 19 malicious and constituted Plaintiff’s third strike under 28 U.S.C. § 1915(g). (Id. at 4-5). On 20 September 14, 2016, the Clerk of Court entered judgment. (ECF No. 5). 21 On September 28, 2016, Plaintiff filed a motion for reconsideration. (ECF No. 6). In 22 the motion, Plaintiff argues that he should not have a strike because he did not know that the 23 Court had filed the instant action because he did not receive confirmation from the Court. (Id. 24 at 4). Plaintiff also states that he had filed a motion to recuse Judge Mahan but then Judge 25 Mahan later “fairly” screened his amended complaint in the other case. (ECF No. 3-4). 26 A motion to reconsider must set forth “some valid reason why the court should 27 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 28 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with 2 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 3 unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands, 4 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to 5 re-litigate the same issues and arguments upon which the court already has ruled.” Brown v. 6 Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005). 7 The Court denies Plaintiff’s motion for reconsideration. Plaintiff has not established that 8 the Court had committed clear error, that there was an intervening change in controlling law, 9 or that there is newly discovered evidence. In fact, after reviewing the procedural history of 10 both cases, it appears that Plaintiff was dissatisfied with Judge Mahan’s July 5, 2015 11 screening 12 2:15-cv-00384-JCM-PAL, ECF No. 2). Plaintiff filed his amended complaint on August 7, 13 2015. (ECF No. 4). On November 16, 2015, Plaintiff filed a motion to recuse Judge Mahan 14 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 15 16 in Count 6 of the amended complaint in Judge Mahan’s case. (See 17 2:16-cv-00574-GMN-GWF, ECF No. 1). Approximately one month later, on April 11, 2016, 18 Judge Mahan issued a screening order on Plaintiff’s amended complaint and permitted the 19 allegations in Count 6 to proceed. (See 2:15-cv-00384-JCM-PAL, ECF No. 19 at 15). Plaintiff 20 did not file any notice with the Court withdrawing the instant lawsuit. 21 Plaintiff argues that he did not know that the Court had received his lawsuit because 22 he did not receive confirmation from the Court. The Court finds this argument meritless. The 23 Court has reviewed Plaintiff’s federal court filing history and, of the eleven cases that Plaintiff 24 has filed in federal court, Plaintiff has only received two confirmation letters from the Court. 25 In June 2016, the Court started sending plaintiff-inmates inmate advisory letters after the Court 26 received initiating case documents from plaintiff-inmates. Plaintiff’s two confirmation letters 27 are dated after June 1, 2016. As such, the Court never sent Plaintiff any confirmation letters 28 prior to June 2016. Plaintiff cannot now allege that he did know about one of the eight 2 1 previous lawsuits that he filed with this Court. 2 reconsideration. Plaintiff continues to have three strikes. 3 II. 4 5 The Court denies the motion for CONCLUSION For the foregoing reasons, IT IS ORDERED that the motion for reconsideration (ECF No. 6) is denied. 6 7 17 DATED: This _____ day of October, 2016. 8 9 10 _________________________________ Gloria M. Navarro, Chief Judge United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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