Schiro v. Clark et al

Filing 189

ORDER denying 188 Motion for District Judge to Reconsider Order. Signed by Judge Robert C. Jones on 2/18/15. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
6

_____________________________________

7

KENNETH J. SCHIRO,

8

Plaintiff,

9
10
11

vs.
STEPHEN CLARK et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

3:10-cv-00203-RCJ-VPC
ORDER

12
13

Plaintiff sued Defendants for violation of his civil rights under 42 U.S.C. § 1983. The

14

Court recently granted Defendants’ motion to dismiss because the issue of whether a due process

15

violation occurred at Plaintiff’s disciplinary hearing had been finally adjudicated against Plaintiff

16

in the state courts, where he had brought a habeas corpus action concerning, inter alia, the same

17

due process issue that remained for trial in the present case. (See Order, July 9, 2014, ECF No.

18

172-4; Order of Affirmance, Nov. 13, 2014, ECF No. 172-6). The issue was therefore precluded

19

from relitigation here. See Allen v. McCurry, 449 U.S. 90, 96–105 (1980). The Court also

20

dismissed based on Heck v. Humphrey, 512 U.S. 477 (1994) and Ramirez v. Galaza, 334, F.3d

21

850, 856 (9th Cir. 2003).

22
23
24

1 of 2

1

Plaintiff has asked the Court to reconsider under Rule 60(b)(3), i.e., for fraud,

2

misrepresentation, or misconduct by an opposing party. Plaintiff identifies no fraud,

3

misrepresentation, or misconduct by any Defendant. He complains that Defendants have taken

4

inconsistent positions. Plaintiff’s judicial estoppel argument does not, however, implicate fraud

5

under Rule 60(b)(3) in the context of the present federal case. Moreover, Plaintiff’s estoppel

6

argument is based on Defendants having allegedly taken inconsistent positions in the state courts

7

as to the merits of the due process claim. The argument is therefore relevant only to the

8

adjudication of the underlying due process claim. Plaintiff must make his judicial estoppel

9

argument to whatever state court currently has jurisdiction over the habeas corpus action.

10

Plaintiff does not argue that the state court adjudication of his due process claim has been

11

reversed or his discipline otherwise vacated. He makes no argument why the present § 1983

12

action is not barred by Allen and Ramirez.
CONCLUSION

13
14

IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 188) is DENIED.

15

IT IS SO ORDERED.

16

Dated this 18th day of February, 2015.

17
18
19

_____________________________________
ROBERT C. JONES
United States District Judge

20
21
22
23
24

2 of 2