Greene v. State of Nevada et al

Filing 15

ORDER that the motion for partial reconsideration ECF No. 13 is granted; Count I, as addressed in the original screening order ECF No. 12 is vacated; Counts I, II portion of III, and IV will proceed as indicated in order and origin al screening order ECF No. 12 ; all deadlines set forth in the original screening order ECF No. 12 will reset from the date of this order; Clerk directed to e-serve order on AG (e-served on 07/10/2018); 90-day stay report due 10/7/2018; any motio n to exclude from mediation due by is due by 7/30/2018; Response due 7 days thereafter; no reply; AG shall advise by 7/30/2018 re limited appearance for purpose of settlement. Signed by Judge Miranda M. Du on 7/9/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ARTHUR JULIUS-GREENE BERAHA,

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Case No. 3:17-cv-00366-MMD-VPC

Plaintiff,

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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On June 15, 2018, this Court entered a screening order on the First Amended

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Complaint (“FAC”). (ECF Nos. 10, 12.) The Court permitted multiple claims to proceed to

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mediation. (ECF No. 12 at 12-13.) In Count I, the Court interpreted Plaintiff’s allegations

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challenging Dzurenda’s statutory authority to modify an administrative regulation as a

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state law claim rather than a federal due process claim. (Id. at 5.) The Court permitted the

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state law claim to proceed against Dzurenda. (Id.)

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On June 27, 2018, Plaintiff filed a motion for partial reconsideration. (ECF No. 13.)

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Plaintiff challenges the Court’s decision to sua sponte construe a portion of his Count I

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federal due process claim as a state statutory challenge. (Id. at 1.) Plaintiff argues that he

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is attempting to address the federal constitutionality of the state law and explains why he

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does not want his claim to proceed as a state law challenge. (Id. at 2-4.) Plaintiff requests

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that the Court modify its Order to permit the federal due process claim to proceed based

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on Dzurenda’s lack of statutory authority. (Id. at 3.)

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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

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

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

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1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not

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an avenue to re-litigate the same issues and arguments upon which the court already has

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

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The Court grants Plaintiff’s motion for partial reconsideration. After reviewing

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Plaintiff’s FAC and motion, it is clear that Plaintiff intended to allege a federal due process

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claim against Dzurenda in Count I rather than a state law claim. As such, the Court no

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longer interprets a portion of Count I as a state law claim. Plaintiff’s federal due process

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claim may proceed against Dzurenda.

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II.

CONCLUSION

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For the foregoing reasons, it is ordered that the motion for partial reconsideration
(ECF No. 13) is granted.

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It is further ordered that Count I, as addressed in the original screening order (ECF
No. 12), is vacated.

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It is further ordered that, based on this Order and the original screening order, the
claims in the FAC will proceed as follows:


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authority, will proceed against Defendant Dzurenda;
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Count I, alleging federal due process claims for property violations and statutory

Count II, alleging free exercise, RLUIPA, and equal protection violations, will
proceed against Defendants Dzurenda, Filson, and Byrne;

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The portion of Count III, alleging federal telecommunications violations, will

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proceed against Defendants Century Link, EPSI, and ICS. The portion of Count III

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alleging state law violations of Nevada’s Deceptive Trade Practices Act and NRS
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§§ 41.130 and 41.600 will proceed against Defendants Century Link, EPSI, and

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ICS based on supplemental jurisdiction; and

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Count IV, alleging free exercise, RLUIPA, and equal protection violations, will

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proceed against Defendants Dzurenda, Filson, Byrne, and Baker.

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It is further ordered that all deadlines set forth in the original screening order (ECF

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No. 12 at 13-14) will reset from the date of this Order.

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It is further ordered that the Clerk of the Court electronically serve a copy of this

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Order on the Office of the Attorney General of the State of Nevada, by adding the Attorney

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General of the State of Nevada to the docket sheet. This does not indicate acceptance of

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service.
DATED THIS 9th day of July 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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