Friedman v. Byrne et al

Filing 13

ORDER denying Plaintiff's ECF No. 12 Motion for Reconsideration; denying as moot Plaintiff's ECF No. 6 Motion to File Complaint; denying Plaintiff's ECF No. 7 Ex Parte Motion to Extend Time to Effect Service of Complaint; giving Plaintiff 15 days to file amended complaint. Signed by Judge Robert C. Jones on 10/18/2016. (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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KENNETH FRIEDMAN,

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Plaintiff,
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v.
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QUENTIN BYRNE, et. al.,
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Defendants.
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___________________________________ )

3:16-cv-00016-RCJ-WGC
ORDER

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I.

DISCUSSION

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On August 19, 2016, the Court issued an order screening Plaintiff’s civil rights complaint

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brought pursuant to 42 U.S.C. § 1983. (ECF No. 9). Plaintiff has filed a motion to file

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complaint (ECF No. 6), an ex parte motion to extend time to effect service of complaint (ECF

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No. 7) and a motion for reconsideration (ECF No. 12). Plaintiff asks the Court to reconsider

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its dismissal of his Count I First Amendment retaliation claim as to defendant David Carpenter

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and its dismissal of Plaintiff’s Count II due process claim without leave to amend.

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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 F.Supp.2d

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1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with

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newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands,

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to
re-litigate the same issues and arguments upon which the court already has ruled.” Brown v.

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Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

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Plaintiff asserts that defendant Carpenter “colluded and conspired” with defendant

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Olivas “to use disciplinary action to perpetuate retaliation.” (ECF No. 12 at 2-3). The

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addendum to Plaintiff’s complaint details how defendant Carpenter weighed evidence at

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Plaintiff’s hearing and gave more weight to the defendants’ testimony than to Plaintiff’s

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witnesses. (See ECF 1-2 at 12). As stated in the Court’s screening order, defendant

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Carpenter was dismissed because he was only alleged to have fulfilled his routine duties in

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the disciplinary process after the allegations were filed for allegedly retaliatory purposes. (ECF

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No. 9 at 4-5). Plaintiff is attempting to re-litigate the same issues and arguments upon which

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the Court has already ruled. The sufficiency of the process Plaintiff received was the subject

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of his Count II. (See ECF No. 10 at 8). The Court re-affirms the dismissal of defendant

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Carpenter from Plaintiff’s Count I First Amendment retaliation claim.

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Plaintiff next asserts that he must be afforded full and fair due process before suffering

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the consequences of a disciplinary action. (ECF No. 12 at 4). Plaintiff asserts that he was not

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given fair notice or an opportunity for witnesses to give full testimony. (Id. at 5). No Wolff-type

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due process protections apply, however, unless the result of the hearing is a punishment that

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impairs a constitutionally cognizable liberty interest as defined in Sandin v. Connor, 515 U.S.

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472 (1995). Plaintiff alleges that he suffered disciplinary action, negative classification, “harsh”

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custody, transfer, etc. (ECF No. 12 at 4).

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As stated in the Court’s screening order, Plaintiff has no state-created liberty interest

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in avoiding transfer or disciplinary segregation, for the court concludes that these punitive

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sanctions were not atypical hardships under Sandin. (See ECF No. 9 at 5:13-15 (citation

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omitted)). As Plaintiff fails to identify a liberty interest which would trigger Wolff-type due

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process protections, his allegations concerning the deficiencies of the disciplinary proceedings

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are not enough to state a colorable due process claim. The Court re-affirms the dismissal of

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Plaintiff’s Count II due process claim.
As such, Plaintiff’s motion for reconsideration is denied.

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II.

MOTION TO FILE AND MOTION TO EXTEND TIME
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Plaintiff’s motion to file the complaint (ECF No. 6) is denied as moot: Plaintiff’s

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complaint was filed on August 19, 2016. (See ECF No. 10). Plaintiff’s motion to extend time

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to effect service of complaint (ECF No. 7) is denied as Plaintiff’s complaint was filed on August

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19, 2016 and no extension for service is needed as of yet.

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III.

LEAVE TO AMEND

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As Plaintiff filed this motion for reconsideration, the Court will grant him an additional

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fifteen days from the date of the entry of this order to file any amended complaint. Plaintiff is

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granted leave to file an amended complaint to cure the deficiencies of the complaint. If

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Plaintiff chooses to file an amended complaint he is advised that an amended complaint

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supersedes the original complaint and, thus, the amended complaint must be complete in

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itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

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1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an

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amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896,

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928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required

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to reallege such claims in a subsequent amended complaint to preserve them for appeal).

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Plaintiff’s amended complaint must contain all claims, defendants, and factual allegations that

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Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint

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on this Court’s approved prisoner civil rights form and it must be entitled “First Amended

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Complaint.”

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The Court notes that if Plaintiff chooses to file an amended complaint curing the

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deficiencies of the complaint, as outlined in this order, Plaintiff shall file the amended

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complaint within fifteen (15) days from the date of entry of this order. If Plaintiff chooses not

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to file an amended complaint curing the stated deficiencies, this action shall proceed on Count

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I against defendants Mosely, V. Olivas, R. Olivas, and Byrne only.

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III.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for reconsideration

(ECF No. 12) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to file complaint (ECF No. 6) is
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DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s ex parte motion to extend time to effect
service of complaint (ECF No. 7) is DENIED.

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint curing

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the deficiencies of his complaint, as outlined in the original screening order, Plaintiff shall file

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the amended complaint within fifteen (15) days from the date of entry of this order.

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IT IS FURTHER ORDERED that if Plaintiff chooses not to file an amended complaint

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curing the stated deficiencies of the complaint, this action shall proceed on Count I against

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defendants Mosely, V. Olivas, R. Olivas, and Byrne only.

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DATED: This 18th day of October, 2016.
DATED: This _____ day of September, 2016.

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_________________________________
United States District Judge

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