United States District Court, D. Nevada
MIRANDA DU UNITED STATES DISTRICT JUDGE
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 (“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).
reasons discussed below, the Court grants Plaintiff's
Motion for Composite Reply, overrules Plaintiff's
Objection, and denies Plaintiff's remaining motions.
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,  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.)
MOTION FOR RECONSIDERATION
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.
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).
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.
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 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.)
the opinion that Plaintiff cites in his Motion for
Reconsideration to hold that the “law of Ninth
Circuit [sic] is that blanket bans of hardbound books are
unconstitutional” is the district court's opinion,
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