Sloane v. State Of Nevada et al

Filing 148

ORDER denying 108 Motion for Reconsideration. Signed by Judge Larry R. Hicks on 8/12/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SCOTT SLOANE

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Plaintiff,

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v.

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STATE OF NEVADA; et al.,

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Defendants.

3:11-cv-0008-LRH-WGC
ORDER

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Before the court is plaintiff Scott Sloane’s (“Sloane”) motion for reconsideration of the

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court’s order adopting and accepting the Magistrate Judge’s report and recommendation

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(Doc. #1071). Doc. #108. Defendants filed an opposition (Doc. #111) to which Sloane replied

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(Doc. #117).

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I.

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Facts and Procedural History
Plaintiff Sloane, a pro se litigant in custody of the Nevada Department of Corrections

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(“NDOC”), initiated a civil rights action pursuant to 42 U.S.C. § 1983. Doc. #7. Part of his

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complaint alleged a violation of his First Amendment rights for receiving non-Kosher meals during

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Passover.

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On March 22, 2012, defendants filed a motion for summary judgment on several of

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Sloane’s claims, including his First Amendment claim for receiving non-Kosher for Passover food

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Refers to the court’s docket number.

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items. Doc. #61. On October 5, 2012, the Magistrate Judge issued a report and recommendation

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recommending this court grant defendants’ motion as it related to this claim. See Doc. #95. On

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January 31, 2013, the court adopted and accepted the Magistrate Judge’s report and

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recommendation (Doc. #95) and granted defendants’ motion for summary judgment (Doc. #61) as

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it related to Sloane’s non-Kosher for Passover meal claim. Doc. #107. Thereafter, Sloane filed the

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present motion for reconsideration. Doc. #108.

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II.

Discussion

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Sloane brings his motion for reconsideration pursuant to Fed. R. Civ. P. 60(b). A motion

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under Rule 60(b) is an “extraordinary remedy, to be used sparingly in the interests of finality and

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conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 887, 890 (9th

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Cir. 2000). Rule 60(b) provides that a district court may reconsider a prior order where the court is

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presented with newly discovered evidence, fraud, or mistake. FED. R. CIV. P. 60(b); see also United

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States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v.

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AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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In his motion, Sloane argues that the court erred in adopting and accepting the report and

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recommendation as it related to his non-Kosher for Passover meal claim because he received non-

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Kosher meals during the Passover holiday in violation of his First Amendment rights. See

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Doc. #108. At the heart of Sloane’s motion is the difference between normal Kosher meals and

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special Kosher for Passover meals. During Passover, additional food items, known as Kitniyot, are

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disallowed. These additional disallowed food items include peanuts and peanut butter, mustard, and

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scaled fish not specifically marked Kosher for Passover.2

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Here, it is undisputed that Sloane received normal stock Kosher prison food for his

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Passover meals. These Kosher meal items included tuna in an unmarked can, mustard, and peanut

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For an in-depth list of foods that are generally Kosher, but are not Kosher for Passover, see The
Shiksa Blog, http://theshiksa.com/what-foods-are-kosher-for-passover/.

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butter. See Doc. #68, Exhibit 2. Although these standard prison food items are Kosher, they are not

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Kosher for Passover. Thus, it is undisputed that Sloane did in fact receive inappropriate meal items

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during the Passover holiday.

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However, the court finds that reconsideration of its prior order granting defendants

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summary judgment is not warranted because defendants are entitled to qualified immunity.

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Although Sloane received inappropriate meal items during the 2010 Passover holiday, it is

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undisputed that these same meal items were served to Sloane during the 2009 Passover holiday and

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for many years previously. Yet, Sloane never filed a grievance with the prison complaining of the

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food he received, nor did he refuse his prior Passover meals. As such, Sloane did not put

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defendants on notice that their conduct was improper or unconstitutional. Thus, defendants are

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entitled to a good-faith defense in this action because the “unlawfulness” of the alleged non-Kosher

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meal was not “apparent” to defendants. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

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Accordingly, the court shall deny Sloane’s motion for reconsideration.

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IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (Doc. #108) is
DENIED.

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IT IS SO ORDERED.

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DATED this 12th day of August, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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