Campbell v. Wexford Health Source Incorporated

Opinion

1 SC 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jason Allen Campbell, No. CV 23-08063-PCT-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Wexford Health Source Inc., et al., 13 Defendants.

15 Plaintiff Jason Allen Campbell, who is confined in the Mohave County Jail, filed a 16 pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to 17 Proceed In Forma Pauperis (Doc. 2). On May 25, 2023, the Court granted the Application 18 and dismissed the Complaint with leave to amend because it failed to state a claim. 19 Thereafter, Plaintiff filed a motion to appoint counsel (Doc. 7), a notice (Doc. 8), a motion 20 to release information under the Freedom of Information Act (Doc. 10), and a First 21 Amended Complaint (Doc. 9). On July 19, 2023, the Court denied the motions and 22 dismissed the First Amended Complaint with leave to amend within 30 days (Doc. 11). 23 Plaintiff has now filed a motion for reconsideration of the denial of his motions and 24 dismissal of his First Amended Complaint (Doc. 12). The Court will deny the motion. 25 I. Standard for Reconsideration 26 Motions for reconsideration should be granted only in rare circumstances. 27 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 28 reconsideration is appropriate where the district court “(1) is presented with newly 1 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 2 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 3 County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be 4 used for the purpose of asking a court “‘to rethink what the court had already thought 5 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 6 the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). A motion 7 for reconsideration “may not be used to raise arguments or present evidence for the first 8 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 9 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Nor may a motion for 10 reconsideration repeat any argument previously made in support of or in opposition to a 11 motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. 12 Ariz. 2003). Mere disagreement with a previous order is an insufficient basis for 13 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 14 1988). 15 The Court has reviewed Plaintiff’s motion. Plaintiff has not alleged clear error, 16 newly discovered evidence, or that manifest justice will result if reconsideration is denied. 17 The Court previously informed Plaintiff of the standards to state the types of claims for 18 which he seeks relief. Plaintiff is not required to prove in a second amended complaint 19 that his constitutional rights were violated in order to state a claim. Instead, in a second 20 amended complaint, Plaintiff should allege any facts that support when, where, by whom, 21 and how any of his constitutional rights were violated. 22 The Court finds no basis to reconsider its July 19, 2023 Order. Thus, the Court will 23 deny Plaintiff’s motion for reconsideration. 24 II. Warnings 25 A. Release 26 If Plaintiff is released while this case remains pending, and the filing fee has not 27 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 28 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 1 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Possible “Strike” 9 Because the First Amended Complaint has been dismissed for failure to state a 10 claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies 11 identified in the July 19, 2023 Order, the dismissal may count as a “strike” under the “3- 12 strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may 13 not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 14 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 15 facility, brought an action or appeal in a court of the United States that was dismissed on 16 the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 17 be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 18 U.S.C. § 1915(g). 19 . . . . 20 . . . . 21 . . . . 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . ITIS ORDERED: 2 (1) Plaintiff's motion for reconsideration (Doc. 12) is denied. 3 (2) Plaintiff is granted 30 days from the date this Order is filed to file a second 4 amended complaint in compliance with the July 19, 2023 Order. 5 (3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 8 | and deny any pending unrelated motions as moot. 9 Dated this 14th day of August, 2023. 10 11 a 12 13 _ James A. Teil Org Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

tc