Harter v. McDaniel et al

Filing 7

ORDER denying Plaintiff's ECF No. 5 Motion to Stay the Screening Order. Signed by Judge Robert C. Jones on 8/30/2016. (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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HAROLD E. HARTER,
Case No. 3:16-cv-00118-RCJ-WGC
Plaintiff,

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v.

Order

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E.K. McDANIEL, et al.,
Defendants.

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I.

DISCUSSION

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On July 18, 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. 3). Plaintiff has now filed a motion to stay

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the screening order (ECF No. 5), that the Court construes as a motion for reconsideration.

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Plaintiff alleges the Court incorrectly dismissed Plaintiff’s Fourteenth Amendment due

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process and equal protection claims based on facts never alleged by Plaintiff. (ECF No. 5 at

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

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

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court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D.

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Nev. 2003).

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

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Reconsideration is appropriate if this Court “(1) is presented with newly

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

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5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to re-litigate

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the same issues and arguments upon which the court already has ruled.” Brown v. Kinross

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

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Plaintiff asserts that he does not merely allege that he is “being treated differently than

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other inmates,” but also that he faces a form of “gender discrimination requiring a higher

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standard of review.” (ECF No. 5 at 1). Plaintiff does not allege in his complaint, however, that

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he was denied parole or given a higher risk to sexually re-offend based solely on his sexual

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orientation. Plaintiff specifically alleges “Plaintiff’s risk to sexually reoffend was also based

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on the aggravation and false conclusion that he was a stranger to his victims and that he had

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a lover living with him for over two years.” (ECF No. 4 at 4). Plaintiff states that defendant

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Dr. Lewis used Plaintiff’s static-99 assessment in determining his risk to re-offend. (ECF No.

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4 at 3-4). The static-99 assessment produces a score based on factors other than Plaintiff’s

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sexual preference or the sex of his victims. Plaintiff’s issue with the assessment is that it is

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unaffected by his positive institutional record. (ECF No. 4 at 4). Based on Plaintiff’s own

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allegations, a rational basis test is the appropriate means to determine whether a violation of

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the Equal Protection Clause of the Fourteenth Amendment has occurred. As such, Plaintiff’s

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motion for reconsideration on the basis of the Court’s Equal Protection analysis is denied.

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Plaintiff additionally alleges that the Court erred in dismissing his Fourteenth

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Amendment Due Process claim because he “has a liberty interest in being considered for

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parole . . . .” (ECF No. 5 at 3). Plaintiff is incorrect. While a state’s statutory scheme for

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parole can give rise to a constitutional liberty interest if it uses the mandatory language and

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creates a presumption that parole release will be granted, see Greenholtz v. Inmates of Neb.

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Penal & Corr. Complex, 442 U.S. 1, 7 (1979), the law of the particular state is relevant.

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Release on parole in the State of Nevada is “an act of grace of the State,” and “it is not

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intended that the establishment of standards relating [to parole] create any such right or

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interest in liberty or property or establish a basis for any cause of action against the State, its

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political subdivisions, agencies, boards, commissions, departments, officers or employees.”

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NRS 213.10705. As such, Plaintiff’s motion for reconsideration on the basis of the Court’s due

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process analysis is denied.

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II.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion to stay the screening

order (ECF No. 5) is DENIED.
DATED: August 30, 2016.
DATED: This _____ day of August, 2016.

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_________________________________
United States District Judge

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