Jones v. Skolnik et al

Filing 38

ORDERED that P's # 31 motion to challenge errors in order # 24 " is DENIED. The dismissal with prejudice of Claims 2 and 6 of the amended complaint, as determined in the Court's December 28, 2010 order, remains in effect. FURT HER ORDERED P's # 32 Motion to affix exhibits is GRANTED. The Clerk of Court SHALL ATTACH to the # 16 Amended complaint the Exhibits found at ECF No. 6 -2. Signed by Judge Larry R. Hicks on 4/6/2011. (Copies have been distributed pursuant to the NEF - DRM)

-VPC Jones v. Skolnik et al

Doc. 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This a pro se civil rights action filed pursuant to 42 U.S.C. § 1983, by a Nevada state prisoner. By order filed December 28, 2010, the Court dismissed with prejudice several counts of the first amended complaint and allowed other counts to proceed. (ECF No. 15). On January 20, 2011, the Clerk of Court filed plaintiff's motion for reconsideration, pursuant to Rule 59(e), of the Court's December 28, 2010 order. (ECF No. 20). By order filed February 7, 2011, this Court denied plaintiff's motion for reconsideration on two grounds: (1) untimeliness, and (2) plaintiff's failure to make an adequate showing under 59(e) that this Court's order filed December 28, 2010, should be altered or reversed. (ECF No. 24, at p. 2). Most recently, on February 16, 2011, plaintiff filed a "motion to challenge errors in order #24." (ECF No. 31). In his motion, plaintiff argues that his Rule 59(e) motion was not untimely. In the order of February 7, 2011, this Court deemed plaintiff's Rule 59(e) motion as filed on January 17, 2011, the date he signed the motion, pursuant to the mailbox rule of Houston v. Lack, 487 U.S. 266, 270 (1988). (ECF No. 24, at pp. 1-2). In ruling that the motion was untimely, the Court erred. Under the 2009 amendments to Rule 59(e) of the Federal Rules of Civil Procedure, a "motion to vs. HOWARD SKOLNIK, et al., Defendants. CHRISTOPHER A. JONES, Plaintiff, ) ) ) ) ) ) ) ) ) / UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

3:10-cv-00162-LRH-VPC ORDER

Dockets.Justia.com

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alter or amend a judgment shall be filed no later than 28 days after entry of the judgment." Plaintiff's motion for reconsideration of this Court's December 28, 2010 order, deemed filed on January 17, 2011, was timely, as plaintiff asserts. However, the alternative basis of denying the motion for reconsideration, plaintiff's failure to make an adequate showing under 59(e), still stands. In his February 16, 2011 motion, plaintiff further argues that this Court's dismissal of Counts 2 and 6 of the amended complaint is "inconsistent with Count 2 of 3:07-cv-00474-LRH-VPC." (ECF No. 31, at pp.1-4). Plaintiff compares the Court's ruling in the instant action to a ruling made in another civil action. Plaintiff directs this Court to a Report and Recommendation prepared by a Magistrate Judge, filed January 12, 2011, in Greene v. Neven, 3:07-cv-00474-LRH-VPC. (ECF No. 89, in Greene v. Neven, 3:07-cv-00474-LRH-VPC). In that Report and Recommendation, the Magistrate Judge made findings that the plaintiff stated a cognizable claim for inadequate conditions of confinement and for supervisory liability. (Id., at pp. 11-13). Plaintiff likens the claims in Greene v. Neven, 3:07-cv-00474-LRH-VPC to his own Claims 2 and 6 of the amended complaint. This argument fails. The order entered in the instant case found that Claims 2 and 6 were not cognizable and not plausible under the United States Supreme Court authority of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); see ECF No. 15. That the Magistrate's Report and Recommendation in another civil action failed to apply Ashcroft v. Iqbal to the complaint that was before it is no cause for characterizing this Court's rulings as "inconsistent." Moreover, the claims asserted in Greene v. Neven, 3:07-cv-00474-LRH-VPC are not identical or necessarily similar to the claims asserted in the instant case. Plaintiff's contention in comparing the two cases and accusing this Court of inconsistent rulings is without merit. This Court's dismissal of Counts 2 and 6 of the amended complaint is consistent with United States Supreme Court authority, and this Court's decision will stand. Plaintiff's "motion to challenge errors in order #24" is denied. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (a motion under Fed. R. Civ. P. 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law"). This Court will entertain no further motions for reconsideration regarding the dismissal with 2

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prejudice of Claims 2 and 6 of the amended complaint. Finally, in plaintiff's February 16, 2011 motion, he states that: "The court totally ignored the motion for clarification section of #20." (ECF No. 31, at p. 4). Plaintiff is referring to portion of his January 20, 2011 motion, on page 15, which states: "The plaintiff seeks clarification as to if the exhibits in support of the original complaint (#1) were affixed to the first amended complaint." (ECF No. 20, at p. 15). Plaintiff is advised that, when seeking more than one type of action from the Court, he shall file separate motions for each type of action sought, rather than attaching a request to an unrelated motion, as he did in his January 20, 2011 motion. On February 18, 2011, plaintiff filed a motion to affix exhibits from original pleading (#1) to amended pleading (#16). (ECF No. 32). This motion appears to duplicate the "request for clarification" plaintiff made in his earlier motion. (ECF No. 20). Plaintiff asks that Exhibits 7-12, 16, 18-21, and 23-26, attached to his original complaint at ECF No. 1, be attached to the amended complaint at ECF No. 16. The record reflects that all exhibits attached to plaintiff's original complaint (ECF No. 1) are attached to the amended complaint (ECF No. 16). In addition, to the extent that plaintiff is requesting that the exhibits attached to his motion at ECF No. 6 be attached to the amended complaint, the Court will so order. To the extent that plaintiff is referring to some other exhibits, he may take up this matter with the Magistrate Judge in further proceedings. IT IS THEREFORE ORDERED that plaintiff's "motion to challenge errors in order #24" (ECF No. 31) is DENIED. The dismissal with prejudice of Claims 2 and 6 of the amended complaint, as determined in the Court's December 28, 2010 order, remains in effect. IT IS FURTHER ORDERED that plaintiff's motion to affix exhibits (ECF No. 32) is GRANTED. The Clerk of Court SHALL ATTACH to the amended complaint (ECF No. 16) the exhibits found at ECF No. 6-2. Dated this 6th day of April, 2011.

LARRY R. HICKS UNITED STATES DISTRICT JUDGE 3