Mauwee, Sr. v. Cox et al

Filing 12

ORDER denying Plaintiff's 7 Motion for Reconsideration. Signed by Chief Judge Robert C. Jones on 10/15/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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EUGENE A. MAUWEE, SR.,

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Plaintiff,

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vs.

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GREG COX, et al.,

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Defendants.

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3:12-cv-00580-RCJ-WGC
ORDER

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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state

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prisoner. On July 12, 2013, this Court entered a screening order, allowing Plaintiff’s First

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Amendment free exercise of religion claim against Defendant Olivas to proceed. (ECF No. 3). All

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other claims in the complaint were dismissed with prejudice. (Id.). Plaintiff has filed a motion for

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reconsideration of the Court’s screening order. (ECF No. 7).

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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

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(1994). Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for

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the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence, that, with reasonable diligence, could not have

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been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or other misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.
Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick

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

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

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

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1986), aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of

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the Federal Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be

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filed no later than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P.

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59(e) “should not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an intervening change

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in the controlling law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v.

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Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Federal courts have determined that there are four

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grounds for granting a Rule 59(e) motion: (1) the motion is necessary to correct manifest errors of

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law or fact upon which the judgment is based; (2) the moving party presents newly discovered or

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previously unavailable evidence; (3) the motion is necessary to prevent manifest injustice; or (4)

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there is an intervening change in controlling law. Turner v. Burlington Northern Santa Fe R. Co.,

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338 F.3d 1058 (9th Cir. 2003).

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In this case, the Court properly dismissed those claims that failed to state a cognizable claim

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and for which amendment would be futile. The Court allowed Plaintiff’s free exercise of religion

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claim against Defendant Olivas to proceed. (ECF No. 3). In his motion for reconsideration, Plaintiff

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has not identified any mistake, intervening change in controlling law, or other factor that would

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require vacating the judgment. Plaintiff has not shown that manifest injustice resulted from the

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screening order. Plaintiff also has not presented newly discovered or previously unavailable

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evidence. Plaintiff has failed to make an adequate showing under either Rule 59(e) or Rule 60(b) to

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justify granting his motion for reconsideration.

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IT IS THEREFORE ORDERED that Plaintiff’s motion for reconsideration (ECF No. 7) is
DENIED.
Dated this 15TH day of October, 2013.

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UNITED STATES DISTRICT JUDGE
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