Mizzoni v. State of Nevada ex rel et al

Filing 9

ORDER denying ECF No. 6 Motion for Reconsideration; granting ECF No. 8 Motion to Address First Amended Complaint; giving Plaintiff 30 days to file a second amended complaint; directing Clerk to send Plaintiff 1983 form, instructions, and copies of his ECF No. 7 complaint and ECF No. 8 motion. Signed by Judge Miranda M. Du on 7/20/2016. (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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JOSEPH L. MIZZONI,

Case No. 3:15-cv-00499-MMD-WGC
Plaintiff,

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ORDER

v.
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STATE OF NEVADA, et al.,
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Defendants.
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I.

DISCUSSION

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A.

MOTION FOR RECONSIDERATION

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Plaintiff has filed a motion for reconsideration of the Court’s denial of his request

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for emergency injunctive relief. (ECF No. 6, see ECF No. 4.) Plaintiff seeks to have his

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disciplinary action expunged/dismissed and to be released from disciplinary

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segregation. (ECF No. 6 at 6.)

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Under Rule 60(b) of the Federal Rules of Civil Procedure, a court may grant a

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party relief from a final judgment for the following reasons: (1) mistake, inadvertence,

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surprise,

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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the

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judgment has been satisfied, released or discharged; or (6) any other reason that

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justifies relief. Fed. R. Civ. P. 60(b). The last catch-all provision should only be granted

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"sparingly as an equitable remedy to prevent manifest injustice." United States v.

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Washington, 98 F.3d 1159, 1163 (9th Cir. 1996) (internal quotation marks omitted).

or

excusable

neglect;

(2)

newly

discovered

evidence;

(3)

fraud,

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The purpose of a preliminary injunction is to preserve the status quo if the

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balance of equities so heavily favors the moving party that justice requires the court to

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intervene to secure the positions of the parties until the merits of the action are

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ultimately determined. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

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Plaintiff is not seeking to preserve the status quo. Instead, he wants his disciplinary

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charge expunged prior to the Court determining the merits of his due process claim. He

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also wants to be released from disciplinary segregation. The United States Supreme

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Court has cautioned the federal courts not to interfere with the day-to-day operations of

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the prisons, especially those related to security-a task which is best left to prison

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officials who have particular experience in dealing with prisons and prisoners. See

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Turner v. Safley, 482 U.S. 78, 84-86, 89 (1987).

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Plaintiff has not demonstrated that any of the reasons set forth in Rule 60(b)

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apply here and the Court denies his motion for reconsideration. Plaintiff has not shown

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mistake, newly discovered evidence, or fraud that would warrant granting his request.

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Moreover, courts are cautioned against intervening in the day-to-day operations of

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prisons, including which units prisoners are held in.

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B.

MOTION TO
DEFENDANT

ADDRESS

FIRST

AMENDED

COMPLAINT/ADD

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On March 2, 2016, the Court issued a screening order allowing Plaintiff thirty (30)

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days in which to amend his complaint. (ECF No. 4.) On March 25, 2016, Plaintiff filed a

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first amended complaint. (ECF No. 7.) Prior to the Court screening his first amended

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complaint, Plaintiff filed a motion seeking permission to address his first amended

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complaint and add a defendant (John Hill). (ECF No. 8.)

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Plaintiff has been previously advised that an amended complaint must be

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complete in itself. See Hal Roach, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (holding that “[t[he fact that a party was named in the original

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complaint is irrelevant; an amended pleading supersedes the original); see also Lacey

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v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed

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with prejudice, a plaintiff is not required to reallege such claims to preserve them for

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appeal). The Court will grant Plaintiff’s motion as follows: Plaintiff is granted thirty (30)

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days from the date of this order to file a second amended complaint that incorporates

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the allegations contained in his motion (ECF No. 8). The Court will then screen his

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second amended complaint in due course. If Plaintiff fails to file a second amended

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complaint within thirty (30) days of this order, the Court will screen Plaintiff’s first

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amended complaint (ECF No. 7). This ensures that the Court is screening a complaint

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that is complete in itself.

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II.

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CONCLUSION
For the foregoing reasons, it is ordered that Plaintiff’s motion for reconsideration

(ECF No. 6) is denied.
It is further ordered that Plaintiff’s motion to address first amended complaint/add
defendant (ECF No. 8) is granted as detailed below.
It is further ordered that Plaintiff may file a second amended complaint within
thirty (30) days from the date of entry of this order.

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It is further ordered that the Clerk of the Court send to Plaintiff the approved form

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for filing a § 1983 complaint, instructions for the same, and a copy of his complaint and

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motion (ECF Nos. 7, 8). If Plaintiff chooses to file a second amended complaint, he

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must use the approved form and write the words “Second Amended” above the words

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“Civil Rights Complaint” in the caption.

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It is further ordered that if Plaintiff fails to file a second amended complaint within

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thirty (30) days from the date of entry of this order, the Court will screen Plaintiff’s first

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amended complaint (ECF No. 7).

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DATED THIS 20th day of July 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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