Bellon v. Deal et al

Filing 11

ORDER denying ECF No. 10 Motion for Relief from ECF Nos. 8 Screening Order, 9 Judgment. Signed by Chief Judge Miranda M. Du on 4/6/2020. (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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ROBERT LINZY BELLON,

Case No. 3:18-cv-00294-MMD-WGC
Plaintiffs,

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ORDER

v.
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DWAYNE DEAL, et al.,
Defendants.

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Plaintiff Robert Linzy Bellon, an incarcerated person in the custody of the Nevada

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Department of Corrections, submitted a first amended civil rights complaint (“FAC”) under

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42 U.S.C. § 1983. (ECF No. 5.) On March 4, 2019, this Court dismissed the FAC without

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leave to amend. (ECF No. 8 at 9.) The Court found that Plaintiff failed to raise any colorable

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due process, equal protection, and Eighth Amendment claims based on the miscalculation

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of his parole eligibility date. (Id. at 4–7.) The Court also found that Plaintiff’s argument to

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have the Court recalculate his parole eligibility date by recalculating/applying Plaintiff’s

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time-served in the county jail fell within the scope of habeas corpus because such a

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recalculation would change Plaintiff’s sentence start date and duration of Plaintiff’s

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sentence. (Id. at 7–8.) The Court directed Plaintiff to review NRS § 34.724 which directed

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a prisoner to file a state petition for writ of habeas corpus to challenge improper

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computations of time served pursuant to a judgment of conviction. (Id. at 8.) The Court

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dismissed the FAC without leave to amend and found that an appeal under 28 U.S.C. §

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1915(a)(3) would not be taken in good faith. (Id. at 9.) On January 7, 2020, Plaintiff filed a

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motion for relief under Federal Rule of Civil Procedure (“FRCP”) 60(b)(1), (2), and (3).

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(ECF No. 10.)

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A party can seek reconsideration under FRCP 60(b). Fed. R. Civ. P. 60(b). Under

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FRCP 60(b), the Court may relieve a party from a final judgment or order for: (1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; or (3)

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misrepresentation. Id. “Reconsideration is appropriate if the district 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, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for

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reconsideration “may not be used to raise arguments or present evidence for the first time

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when they could reasonably have been raised earlier in the litigation.” Carroll v. Nakatani,

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342 F.3d 934, 945 (9th Cir. 2003).

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In the motion for reconsideration, Plaintiff argues that this Court made a mistake,

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misrepresented his arguments, and he has newly discovered evidence. (ECF No. 10 at

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3.) Mainly, Plaintiff argues that his new evidence involves Judge Robert C. Jones’s order

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which is allegedly contrary to this Court’s order. (Id.) Plaintiff asserts that he filed a federal

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habeas corpus claim with Judge Jones, but Judge Jones held that his claim was not

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cognizable in a federal habeas corpus action. (Id.) Plaintiff asserts that the Court

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misinterpreted his arguments because he was seeking a parole hearing, not parole, and

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continues to challenge the miscalculation of credits under the Nevada Revised Statutes.

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(Id. at 3–5.)

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On February 28, 2019, Plaintiff initiated a petition for writ of habeas corpus under

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28 U.S.C. § 2241. (See Bellon v. Williams, 3:19-cv-00118-RCJ-WGC, ECF No. 1.) On

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December 20, 2019, Judge Jones dismissed the petition. (ECF No. 20 at 1.) Judge Jones

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found that the claim that the respondents’ failure to give Plaintiff credit toward the 20-year

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parole eligibility period for time-served on another conviction was not cognizable in federal

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habeas corpus because the claim would only result in an earlier parole board

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consideration and not provide Plaintiff with an immediate or speedier release from custody.

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(Id. at 2-3.) Alternatively, Judge Jones found that Plaintiff’s petition did not make a

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colorable claim for a federal constitutional violation because Plaintiff did not have a liberty

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interest under NRS § 213.12135 in being considered for parole on a schedule that Plaintiff
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suggested. (Id. at 3.) Judge Jones’s order also referenced the Nevada Supreme Court’s

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ruling denying Plaintiff’s state habeas petition on the same claim. (Id.).

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This Court now denies Plaintiff’s motion for reconsideration under FRCP 60(b).

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First, Plaintiff makes the same arguments in his motion for reconsideration as he did in his

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FAC. Second, the Court did not commit clear error in its original screening order and Judge

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Jones’s order supports that. The original screening order addressed Plaintiff’s 42 U.S.C.

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§ 1983 claims—due process, equal protection, and Eighth Amendment—and found that

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he failed to state colorable claims. (See ECF No. 8 at 5–7.) The original screening order

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also directed Plaintiff to consider filing a state petition for writ of habeas corpus to

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challenge the improper computations of time served. (Id. at 8.) Judge Jones’s order

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demonstrates that the Nevada Supreme Court rejected Plaintiff’s interpretation of NRS §

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213.12135 in his state habeas petition. (See 3:19-cv-00118-RCJ-WGC, ECF No. 20 at 3.)

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As such, Plaintiff fails to present any arguments that entitle Plaintiff to relief under FRCP

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60(b). The Court denies the motion for reconsideration.

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For the foregoing reasons, it is ordered that the motion for reconsideration (ECF
No. 10) is denied.
DATED THIS 6th day of April 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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