Kirk v. Murguia

Filing 11

ORDER denying 10 motion for reconsideration. Signed by Judge Miranda M. Du on 10/16/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DEREK KIRK,

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Case No. 3:15-cv-00067-MMD-WGC
Plaintiff,

ORDER

v.
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EUGENE MURGUIA,
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Defendant.
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I.

DISCUSSION

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On July 6, 2015, this Court issued a screening order dismissing Plaintiff’s

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complaint in its entirety, with prejudice, for failure to state a claim. (Dkt. no. 7 at 6.) This

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Court found that Plaintiff failed to allege claims for violations of his Fourteenth

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Amendment due process rights. (Id. at 5.) Specifically, the Court found that Plaintiff

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failed to sufficiently allege a deprivation of a constitutionally protected liberty interest but

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noted that, even if Plaintiff had been deprived of a constitutionally protected liberty

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interest, he failed to allege sufficient facts establishing he was deprived of due process.

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(Id. at 6.) The Court’s order explained how Plaintiff’s allegations established that “some

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evidence” supported the prison disciplinary board’s decision and, thus, satisfied due

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process. (Id.)

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On July 24, 2015, Plaintiff filed a motion for reconsideration. (Dkt. no. 10 at 1.) In

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the motion, Plaintiff explains why he was deprived of a liberty interest. (Id. at 2-4.)

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Plaintiff also reiterates his arguments as to why Defendant violated his due process

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rights. (Id. at 4-6.) Plaintiff requests that the Court vacate its final judgment and grant

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him leave to amend. (Id. at 6.)

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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

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law.” 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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The Court denies Plaintiff’s motion for reconsideration. As discussed in the

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screening order, even if Plaintiff had sufficiently alleged a liberty interest, the Court

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would still have dismissed the complaint for failure to sufficiently allege due process

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violations. Thus, even if Plaintiff were to amend to include a liberty interest, the Court

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would still dismiss the complaint. Additionally, Plaintiff’s motion re-litigates the same

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due process arguments he made in his original complaint. As such, the Court denies

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Plaintiff’s motion for reconsideration.

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II.

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

no. 10) is denied.
DATED THIS 16th day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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