Johnston v. Gedney

• Court: District Court, D. Nevada
• Decided: January 6, 2020
• Docket: 3:16-cv-00754
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 RICHARD JOHNSTON, Case No. 3:16-cv-00754-MMD-WGC

7 Plaintiff, ORDER v. 8 KAREN GEDNEY, et al. 9

Defendants. 10 11 Plaintiff Richard Johnston, an incarcerated person in the custody of the Nevada 12 Department of Corrections (“NDOC”), filed this action pro se under 42 U.S.C. § 1983. 13 Plaintiff alleges that Defendants Dr. Karen Gedney and Dr. Romeo Aranas violated his 14 Eighth Amendment right by being deliberately indifferent to his medical needs related to 15 his back injury. (ECF No. 1-1 at 2-3.) The Court adopted the Report and Recommendation 16 (“R&R”) of United States Magistrate Judge William G. Cobb (ECF No. 84) and granted 17 Defendants’ motion for summary judgment (ECF No. 50) and denied Plaintiff’s cross- 18 motion for summary judgment (ECF No. 61). (ECF No. 89 (“Order”).) Before the Court is 19 Plaintiff’s motion for reconsideration of the Court’s Order (“Motion”).1 (ECF No. 91.) 20 A motion for reconsideration must set forth the following: (1) some valid reason 21 why the court should revisit its prior order; and (2) facts or law of a “strongly convincing 22 nature” in support of reversing the prior decision. Frasure v. United States, 256 F.Supp.2d 23 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented 24 with newly discovered evidence, (2) committed clear error or the initial decision was 25 manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 26 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted). Motions for 27

28 1The Court has also reviewed Defendants’ response to the Motion (ECF No. 92) 1 reconsideration are not are not “intended to give an unhappy litigant one additional 2 chance to sway the judge.” Durkin v. Taylor, 444 F.Supp. 879, 889 (E.D. Va. 1977). 3 Here, Plaintiff does not present the Court with newly discovered evidence or an 4 intervening change in the law. Rather, Plaintiff argues that the Order is manifestly unjust 5 because Defendants failed to produce Plaintiff’s Complete Utilization Panel File, which 6 Plaintiff claims would have revealed evidence that bolster his Eighth Amendment claim. 7 (ECF No. 91 at 1-2, 5.) Because Plaintiff raises this argument for the first time in the 8 Motion—and not in his objection to the R&R—the Court declines to consider it. See 9 Northwest Acceptance Corp. v. Lynnwood Equip., 841 F.2d 918, 925-26 (9th Cir.1988) 10 (holding that district court has discretion not to consider claims not raised until motion for 11 reconsideration). 12 Plaintiff’s Motion also requests relief to file nunc pro tunc objections to Judge 13 Cobb’s orders denying Plaintiff’s motion to stay proceedings (ECF No. 33) and motion to 14 extend time (ECF No. 35). (ECF No. 91 at 4.) These orders were filed on August 21, 2018 15 and November 6, 2018, respectively. Plaintiff has not demonstrated good cause to 16 support his requests to file objections to orders issued over a year ago.2 See Williams v. 17 Marks, No. 3:17-cv-355-MMD-WGC, 2019 WL 1804759, at *1 n.1 (D. Nev. Apr. 24, 2019) 18 (applying good cause standard in granting motion for enlargement of time nunc pro tunc). 19 Contrary to what Plaintiff may suggest (see ECF No. 91 at 6; ECF No. 91-2 at 2), pro se 20 litigants are not excused from following court rules. See, e.g., King v. Atiyeh, 814 F.2d 21 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cnty., 693 22 F.3d 896, 925 (9th Cir. 2012). Accordingly, the Court denies Plaintiff’s requests. 23

24 2Plaintiff had 14 days to appeal Judge Cobb’s pretrial rulings. See LR IB 3-1(a). Plaintiff argues that he could not adequately object to Judge Cobb’s orders because he 25 was placed in a maximum-security prison on July 17, 2018 and did not have access to his legal box or other legal resources. (ECF No. 91 at 4, 6; ECF No. 91-2 at 4.) But the 26 Court is not persuaded. Plaintiff claims he relied on a friend to help him file a motion to stay on August 20, 2018 (ECF No. 32), but he does not dispute that he personally filed a 27 Motion Request for Status Check on February 11, 2019 (ECF No. 39) and a Motion for Evaluation by Orthopedic Specialist on March 1, 2019 (ECF No. 41). Plaintiff presumably 28 had access to legal materials during that time and could have filed objections to Judge 1 It is therefore ordered that Plaintiff's motion for reconsideration (ECF No. 91) is 2 || denied. 3 4 DATED THIS 6" day of January 2020. ~ ftw 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28