Reed v. Nevada Dept of Corrections et al

Filing 144

ORDER denying ECF No. 130 Objection; adopting in full ECF No. 127 R&R; denying ECF Nos. 96 , 97 Motions for Preliminary Injunction. Signed by Judge Miranda M. Du on 8/2/2016. (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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***

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MAX REED II,

Case No. 3:14-cv-00313-MMD-VPC
Plaintiff,

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v.

ORDER

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(Plaintiff’s Objection – ECF No. 130.)

NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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I.

SUMMARY

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Before the Court is an objection (ECF No. 130) Plaintiff Max Reed filed in

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response to Magistrate Judge Cooke’s Report and Recommendation (“R&R”) (ECF No.

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127). The objection was filed late, after the Court issued an order adopting the R&R in

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full. (ECF No. 129.) Consequently, the Court construed the objection as a motion for

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reconsideration (“Motion”) and allowed the parties to fully brief the Motion. (ECF No.

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139.) Defendants filed a response (ECF No. 140) and Reed filed a reply (ECF No. 142).

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Having reviewed these documents, the Court will deny the Motion.

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II.

LEGAL STANDARDS

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A.

Motion for Reconsideration

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A motion to reconsider must set forth “some valid reason why the court should

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reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to

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persuade the court to reverse its prior decision.” Frasure v. United States, 256

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F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is

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presented with newly discovered evidence, (2) committed clear error or the initial

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decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”

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Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for

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reconsideration is not an avenue to re-litigate the same issues and arguments upon

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which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280,

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1288 (D. Nev. 2005).

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A district court may decline to consider claims and issues that were not raised

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until a motion for reconsideration. Hopkins v. Andaya, 958 F.2d 881, 889 (9th Cir. 1992).

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It is not an abuse of discretion to refuse to consider new arguments in a reconsideration

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motion even though “dire consequences” might result. Schanen v. United States Dept. of

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Justice, 762 F.2d 805, 807-08 (9th Cir. 1985). Moreover, motions for reconsideration are

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not justified on the basis of new evidence which could have been discovered prior to the

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court’s ruling. Hagerman v. Yukon Energy Corp., 839 F.3d 407, 413-14 (8th Cir. 1988);

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see also E.E.O.C. v. Foothills Title, 956 F.2d 277 (10th Cir. 1992). Mere disagreement

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with an order is an insufficient basis for reconsideration. Nor should reconsideration be

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used to make new arguments or ask the Court to rethink its analysis. See N.W.

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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).

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B.

Preliminary Injunction / TRO

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“‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy

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that may only be awarded upon a clear showing that the plaintiff is entitled to such

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relief.’” Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v.

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Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 32 (2008)). To qualify for a preliminary

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injunction, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a

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likelihood of irreparable harm; (3) that the balance of hardships favors the plaintiff; and

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(4) that the injunction is in the public interest. Winter, 555 U.S. at 20. Alternatively, in the

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Ninth Circuit, an injunction may issue under a “sliding scale” approach if there are

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serious questions going to the merits and the balance of hardships tips sharply in the

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plaintiff’s favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.
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2011). The plaintiff, however, must still show a likelihood of irreparable injury and that an

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injunction is in the public interest. Id. at 1135. “[S]erious questions are those ‘which

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cannot be resolved one way or the other at the hearing on the injunction.’” Bernhardt v.

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Los Angeles Cty., 339 F.3d 920, 926-27 (9th Cir. 2003) (quoting Republic of the

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Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). They “need not promise a

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certainty of success, nor even present a probability of success, but must involve a ‘fair

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chance of success on the merits.’” Marcos, 862 F.2d at 1362 (quoting Nat’l Wildlife Fed’n

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v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)). The standards for issuing a TRO and a

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preliminary injunction are “substantially identical.” Stuhlbarg Int’l Sales Co. v. John D.

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Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); V’Guara Inc. v. Dec, 925 F. Supp. 2d

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1120, 1123 (D. Nev. 2013).

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In the prison context, mandatory preliminary relief is only warranted where both

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the facts and the law must clearly favor the moving party and “extreme or very serious

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damage will result.” Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 2009)

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(internal quotation omitted); Park Vill. Apartment Tenants Ass’n v. Mortimer Howard

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Trust, 636 F.3d 1150, 1160-61 (9th Cir. 2011). Furthermore, the Prison Litigation Reform

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Act (“PLRA”) restricts the equity jurisdiction of federal courts. Gilmore v. California, 220

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F.3d 987, 999 (9th Cir. 2000) (citing § 3626(a)(2)). Under the PLRA, preliminary

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injunctive relief must be “narrowly drawn,” must “extend no further than necessary to

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correct the harm,” and must be “the least intrusive means necessary to correct the

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harm.” 18 U.S.C. § 3626(a)(2).

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III.

DISCUSSION

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The Magistrate Judge concluded that Reed had not shown evidence of

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irreparable harm because he would be provided with the trial transcripts and evidence

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he seeks once he files a federal habeas petition, pursuant to Rule 5 of Rules Governing

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Section 2254 Cases. (ECF No. 127 at 6-7.) The Court adopted the Magistrate Judge’s

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reasoning. (ECF No. 129.)

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Reed argues that the Magistrate Judge and this Court committed clear error

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because in order to file a federal habeas petition in the first place, he needs to review his

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complete criminal trial transcripts. (ECF No. 130 at 2.) Specifically, Reed argues that

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because he is not allowed to attach exhibits to his federal petition, he needs to review

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his transcripts in order to properly summarize the grounds for his claims, including a

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claim based on the mens rea of his underlying conviction and a claim based on actual

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innocence. (Id. at 2-4.)

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Notably, Reed describes the basis for his actual innocence claim at some length

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in his current Motion. (See ECF No. 130 at 4-5.) Additionally, any claim based on a

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misapplication of the mens rea requirement in the trial court must have been fully

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exhausted through state court channels, so it is not clear why Reed would be unable to

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state the basis for any such claim in a federal habeas petition without the relief he seeks.

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To the extent that Reed feels he is unable to fully formulate a claim in a habeas petition

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because he cannot access his full transcripts, he may amend his petition after receiving

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the transcripts and evidence he seeks. See U.S.C. § 2242 (application may be amended

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or supplemented as provided by the Federal Rules of Civil Procedure). At this stage, the

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harm Reed alleges remains “conjectural or hypothetical” and it is unclear that “a

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favorable judicial decision will prevent or redress” his injury. Summers v. Earth Island

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Inst., 555 U.S. 488, 493 (2009) (explaining that to show standing for injunctive relief an

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alleged injury must be concrete, particularized, and imminent).

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Therefore, the Magistrate Judge and this Court did not commit clear error in

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concluding that Reed had not demonstrated the kind of harm necessary for the issuance

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of a TRO or preliminary injunction.

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IV.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of

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Reed’s Motion.
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It is therefore ordered that Reed’s objection to Magistrate Judge Cooke’s R&R

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(ECF No. 130.), which this Court has construed as a motion for reconsideration, is

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denied. The Court adopts the R&R in full. Reed’s motions for preliminary injunction (ECF

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Nos. 96, 97) are denied.

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DATED THIS 2nd day of August 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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