Walker v. Aranas et al

Filing 10

ORDER DENYING 7 Motion for reconsideration. FURTHER ORD GRANTING 9 Motion to Extend Time : D's answer/response to 6 Complaint due by 6/18/2011. Signed by Judge Larry R. Hicks on 5/18/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAMONT MARCELLE WALKER,
#76780

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Plaintiff,
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vs.
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ROMEO ARANAS, et al.,
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Defendants.
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3:11-cv-00080-LRH-VPC
ORDER

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On April 6, 2011, the court issued a Screening Order allowing certain of plaintiff’s claims to

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proceed and dismissing others (docket #5). On April 18, 2011, plaintiff filed what he has styled a writ

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of error coram nobis (docket #7). However, as set forth in this motion, plaintiff seeks reconsideration

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of the Screening Order. Accordingly, the court construes his motion as such.

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Where a ruling has resulted in final judgment or order, a motion for reconsideration may be

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construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure

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59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J

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Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994).

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Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for the

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following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed

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or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief
from the operation of the judgment.

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Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick Garin

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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a party

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must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior

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decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986),

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aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of the Federal

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Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be filed no later

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than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P. 59(e) “should

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not be granted, absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the controlling law.”

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Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253,

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1255 (9th Cir. 1999).

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In its order of April 6, 2011, the court directed that plaintiff’s Eighth Amendment medical claim

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shall proceed as to the defendant Nevada Department of Corrections (“NDOC”) doctor, but dismissed

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his medical claims against the NDOC medical director and other NDOC personnel because plaintiff

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failed to set forth sufficient allegations against those defendants to state a claim for which relief may be

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granted (docket #5). Plaintiff has failed to make an adequate showing under either Rule 60(b) or 59(e)

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that this court’s order dismissing those defendants should be reversed.

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IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration of this court’s
Screening Order (docket #7) (docketed as “motion to amend/correct complaint”) is DENIED.

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IT IS FURTHER ORDERED that defendant’s motion for extension of time to file responsive

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pleading (docket #9) is GRANTED. Defendant shall file his responsive pleading to plaintiff’s

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complaint within thirty (30) days of the date of entry of this Order.

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Dated this 18th day of May, 2011.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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