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Quintero v. Palmer

United States District Court, D. Nevada

July 7, 2017

JACK PALMER, et al., Defendants.



         I. SUMMARY

         Before the Court are four motions brought by Plaintiff John Quintero: (1) motion for reconsideration of this Court's order accepting Magistrate Judge Valerie Cooke's Report and Recommendation (“Motion for Reconsideration”) (ECF No. 238); (2) motion for leave to file a supplemental brief in support of his Motion for Reconsideration (“Motion for Leave”) (ECF No. 246); (3) objections to this Court's order certifying denial of in forma pauperis status on appeal based on his appeal being frivolous (“Objection”) (ECF No. 247); and (4) motion for leave to file composite reply to Defendants' opposition and response[1] (“Motion for Composite Reply”) (ECF No. 252). The Court has reviewed Defendants' responses (ECF Nos. 248, 250, 251, 254) and Plaintiff's reply (ECF No. 249).

         For the reasons discussed below, the Court grants Plaintiff's Motion for Composite Reply, overrules Plaintiff's Objection, and denies Plaintiff's remaining motions.


         Plaintiff, proceeding pro se and in forma pauperis, is an inmate in the custody of Nevada Department of Corrections (“NDOC”) and is currently housed at Northern Nevada Correctional Center (“NNCC”) in Carson City. Plaintiff's Fourth Amended Complaint (“FAC”) alleged violations of Plaintiff's First and Fourteenth Amendment rights as well as his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). (ECF No. 105.) In February 2016, the parties participated in a settlement conference before Magistrate Judge Valerie P. Cooke and reached resolution whereby in exchange for NDOC's promise to undertake a variety of actions, Plaintiff agreed to dismissal of this action and not to pursue a claim based on Count X of his FAC. (ECF No. 189.) Count X challenged NDOC's policy of allowing inmates to possess religious hardcover books without their covers but otherwise banning all secular hardcover books (ECF No. 105 at 21-22). The Court subsequently granted the parties' stipulation of dismissal on May 6, 2016. (ECF No. 207.) Plaintiff, however, filed two motions prior to his Motion for Reconsideration contesting the validity of the settlement agreement, specifically a Motion for Judgment on the Pleadings, which was untimely, and a Motion to Amend or Alter the Judgment (“Motion to Amend”). (ECF Nos. 201, [2] 212.) On the latter motion, Magistrate Judge Cooke issued a Report and Recommendation (“R&R”) denying the Motion to Amend (ECF No. 224), which this Court then adopted over Plaintiff's objection. (ECF No. 237 at 2-7.) Plaintiff also filed a Motion to Enforce the Settlement Agreement (“Motion to Enforce”) (ECF No. 228), which this Court denied as well. (ECF No. 237 at 7-12.)


         A. Legal Standard

         Although not mentioned in the Federal Rules of Civil Procedure, motions for reconsideration may be brought under Rules 59(e) and 60(b). A Rule 60(b) Motion must be made within a reasonable time and no more than a year after the entry of the order that the party is seeking reconsideration of. See Fed. R. Civ. P. 60(c)(1). Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding only in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the judgment.

         A district court should generally leave a previous decision undisturbed absent a showing of clear error or manifest injustice. Abada v. Charles Schwab & Co., Inc., 127 F.Supp.2d 1101, 1102 (S.D. Cal. 2000). Reconsideration is not a mechanism for parties to make new arguments that could reasonably have been raised in their original briefs. See Kona Enters. v. Estate of Bishop, 229 F.3d 887, 890 (9th Cir.2000). Nor is it a mechanism for the parties “to ask the court to rethink what the court has already thought through-rightly or wrongly.” United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998) (internal quotation marks and citation omitted). “To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

         B. Analysis

         Plaintiff now asks for reconsideration of two aspects of the Court's prior order: (1) adoption of the R&R's denial of his Motion to Amend to permit Count X in the FAC to proceed; and (2) denial of his separate Motion to Enforce the Settlement Agreement (“Motion to Enforce”). The Court will address each issue in turn below.

         1. Motion to Amend Plaintiff makes three arguments. First, Plaintiff argues that Ashker v. Schwarzenegger (Ashker II) is a published opinion and is therefore controlling law, stating that “[t]he Court may have based decision [sic] on false fact [sic] that Ashker v. Schwarzenegger is not valid binding law because it is ‘unpublished.'” (ECF No. 238 at 2.) In Ashker II, the Ninth Circuit affirmed the district court's holding that a blanket ban of hardcover books in a California prison was unconstitutional. Ashker II, 339 Fed. App'x 751752 (9th Cir. 2009), aff'g Ashker v. Schwarzenegger (Ashker I), No. C 04-1967 CW, 2006 WL 648725, at *9 (N.D. Cal. Mar. 8, 2006). In this Court's order accepting the Magistrate's R&R, the Court stated that the basis for denying the Motion to Amend was that the Prison Legal News (“PLN”) Agreement[3] did not constitute new evidence and that there was no evidence to support Plaintiff's assertions that Defendants had tricked him into settling and foregoing a future claim based on Count X. (See ECF No. 237 at 5.) The Court went on to mention that Plaintiff's reliance on Ashker II was misplaced because Ashker II is an unpublished decision and therefore not binding precedent on this Court. (See id. at 5-6.)

         However, the opinion that Plaintiff cites in his Motion for Reconsideration[4] to hold that the “law of Ninth Circuit [sic] is that blanket bans of hardbound books are unconstitutional” is the district court's opinion, [5] which is both unpublished and not binding on this court. (ECF No. 238 at 4.) Moreover, while Plaintiff is correct that both the district court opinion and Ninth Circuit opinion in Ashker are “published” as that term is defined colloquially, in the Ninth Circuit and other federal courts “published” is a term of art encompassing only those court decisions that are published in the Federal Reporter or its supplement. See Hilton v. Apple Inc., No. CV 13-7674 GAF (AJWx), 2014 WL 10435005, at *4 (C.D. Cal. Apr. 18, 2014) (“What's more, Speyer can be found only in the Federal Appendix, and is therefore not binding on the courts of this Circuit.”) (citing 9th Cir. R. 36-3). Thus, both the district court opinion and the Ninth Circuit's opinion in Ashker are unpublished: the district court's opinion is not reported in a Federal Reporter or supplement ...

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