Moreno v. Cortez-Masto et al

Filing 26

ORDER. IT IS ORDERED that P's 17 motion for reconsideration is DENIED. FURTH ORD that Clerk shall DETACH and FILE P's 4 (pgs. 2-10) motion to extend copy work limit. FURTH ORD that P's motion to extend copy work limit is GRANTED. NDOC shall afford P up to $20.00 in copy fees as necessary for copy work to be used to litigate this action only. Signed by Judge Edward C. Reed, Jr on 6/23/2011. (Copies have been distributed pursuant to the NEF - PM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSEPH MORENO,
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Plaintiff,

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vs.

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CATHERINE CORTEZ-MASTO, et al.,

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Defendants.
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3:11-cv-00179-ECR-RAM
ORDER

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On May 12, 2011, the court issued a Screening Order that allowed an Eighth Amendment
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claim to proceed against certain defendants and dismissed other claims with leave to amend (docket
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#15). The Screening Order also denied plaintiff’s motion for counsel. Before the court is plaintiff’s
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motion for district judge to reconsider Screening Order and to reconsider plaintiff’s motion for
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appointment of counsel and request for a ruling on a motion to extend copy work limit (docket #7).
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Where a ruling has resulted in final judgment or order, a motion for reconsideration may
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be 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 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
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,
1255 (9th Cir. 1999).

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In the order of May 12, 2011, the court directed that plaintiff’s Eighth Amendment failure
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to protect claim would proceed and dismissed his Eighth Amendment medical claims with leave to
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amend (docket #15). In his motion, plaintiff states that he agrees that his medical claims should have
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been dismissed, but he renews his argument that he should be appointed counsel (docket #17). Plaintiff
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has failed to make an adequate showing under either Rule 60(b) or 59(e) that this court’s denial of his
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motion for appointment of counsel should be reversed.
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Also before the court is plaintiff’s motion for extension of the copy work limit (see

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docket #4, p. 2). Plaintiff states that he has exceeded the $100.00 copy limit. Good cause appearing,

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plaintiff’s motion is granted. Plaintiff shall be given a $20.00 credit for copy work to be used to litigate

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this action only.

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IT IS THEREFORE ORDERED that plaintiff’s motion for district judge to reconsider
Screening Order (docket #17) is DENIED.
IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE plaintiff’s
motion to extend prison copy work limit (docket #4, pages 2-10).

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IT IS FURTHER ORDERED that plaintiff’s motion to extend prison copy work limit

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(docket #4, pages 2-10) is GRANTED. Nevada Department of Corrections shall afford plaintiff up to

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$20.00 in copy fees as necessary for copy work to be used to litigate this action only.

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Dated this 23rd day of June, 2011.

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UNITED STATES DISTRICT JUDGE
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