Hatlen v. Cox et al

Filing 23

ORDER denying 18 Motion for Reconsideration; directing Plaintiff, on or before 12/1/2014, to submit an amended complaint, file a notice of voluntary dismissal, or do nothing and the case will be dismissed without prejudice. Signed by Judge Robert C. Jones on 12/16/2014. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

KENNETH W. HATLEN,

10

Plaintiff,

11
12

Case No. 3:14-cv-316-RCJ-WGC
ORDER

v.
GREG COX et al.,

13

Defendants.

14
15

I.

DISCUSSION

16

On August 13, 2014, this Court entered a screening order dismissing the

17

complaint in its entirety without prejudice with leave to file an amended complaint. (ECF

18

No. 6 at 7). The Court granted Plaintiff 30 days from the date of that order to file an

19

amended complaint. (Id.). The Court stated that, if Plaintiff failed to file an amended

20

complaint, the Court would dismiss the action with prejudice for failure to state a claim.

21

(Id.). On September 2, 2014, this Court granted Plaintiff until December 1, 2014, to file

22

his amended complaint because Plaintiff alleged that he was going to be at High Desert

23

State Prison for 60 days but his legal documents were being stored at Ely State Prison.

24

(ECF No. 9 at 1).

25

On October 14, 2014, Plaintiff filed a motion for extension of time and sought

26

either a stay of his case or another 90-day extension to file his amended complaint.

27

(ECF No. 15 at 1). This Court denied the motion for an extension of time or stay to file

28

his amended complaint. (ECF No. 17 at 2). This Court stated that if Plaintiff did not

1

submit an amended complaint by December 1, 2014, the Court would dismiss the case

2

without prejudice.

3

voluntarily dismiss the case and initiate a new action when he returned to Ely State

4

Prison. (Id.).

(Id. at 2).

The Court stated that, alternatively, Plaintiff could

5

On November 14, 2014, Plaintiff filed an objection and a motion for

6

reconsideration. (ECF No. 18 at 1). Plaintiff argues that he should not have to be

7

hindered with unnecessary re-filing costs, fees, and labor because Defendants have

8

inhibited his ability to access his legal documents. (Id.). Plaintiff seeks another 90 days

9

to amend his complaint. (Id. at 2).

10

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

11

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

12

persuade the court to reverse its prior decision.”

13

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

14

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

15

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

16

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

17

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

18

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

19

1280, 1288 (D. Nev. 2005).

20

Frasure v. United States, 256

The Court denies the motion for reconsideration because the Court does not find

21

that it committed clear error or that its initial decision was manifestly unjust.

22

screening order, the Court found that Counts I and II had failed to state a claim for

23

deliberate indifference because it was unclear whether Plaintiff was attempting to sue

24

Defendants for malpractice, which is not a cognizable 42 U.S.C. § 1983 claim. (ECF

25

No. 6 at 5). Additionally, the Court found that it was unclear whether Plaintiff was

26

attempting to sue Defendants because he disagreed with the prison doctor’s course of

27

treatment. (Id.). With respect to Count III, the Court found that Plaintiff had failed to

28

identify which Defendants had denied him clothing, food, and sanitation provisions for a

-2-

In its

1

two-day period in 2013. (Id. at 5-6).

2

The Court finds that if Plaintiff is unable to explain in more detail what he is

3

alleging in those counts on or before December 1, 2014, Plaintiff will not be prejudiced

4

by a dismissal without prejudice.

5

complaint are not cognizable claims because Plaintiff is attempting to allege

6

constitutional violations for medical malpractice and disagreement with his medical

7

treatment.

8

dismissal without prejudice because the statute of limitations in Nevada is two years.

9

See Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (citing Nev. Rev. Stat.

10

§ 11.190(4)(c), (e)); see Wallace v. Kato, 549 U.S. 384, 387 (2007) (holding that federal

11

courts borrow state statutes of limitations for personal injury actions in § 1983 suits

12

because § 1983 contains no specific statute of limitations).

13

December 1, 2014, Plaintiff shall: (1) submit an amended complaint; (2) file a notice of

14

voluntary dismissal; or (3) do nothing and the Court will dismiss the entire case without

15

prejudice.

16

II.

17
18

First, Counts I and II as drafted in the original

Second, with respect to Count III, Plaintiff will not be prejudiced by a

As such, on or before

CONCLUSION
For the foregoing reasons, it is ordered that the motion for reconsideration (ECF

No. 18) is denied.

19

It is further ordered that, on or before December 1, 2014, Plaintiff shall: (1)

20

submit an amended complaint; (2) file a notice of voluntary dismissal; or (3) do nothing

21

and the Court will dismiss the entire case without prejudice.

22
23

Dated this 16th day of December, 2014.
DATED THIS ___ day of November, 2014.

24
25

UNITED STATES DISTRICT JUDGE

26
27
28

-3-