Free Order on Motion for Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 Armando Roberto Aros, 9 Plaintiff, 10 vs. 11 C.O. Robinson, et al., 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SC

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CV-04-0306-PHX-SRB (LOA) ORDER

Plaintiff Armando Roberto Aros, an inmate confined in the Arizona State Prison Complex-Rynning Unit-Eyman in Florence, Arizona, filed this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are Plaintiff's motion for entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and a filing styled an "addendum" to the Rule 54(b) motion. (Docs.# 22, 38.)1 Plaintiff filed the Rule 54(b) motion in connection with the Court's Order filed September 12, 2005, which dismissed several Defendants and Counts I-III of the Third Amended Complaint without prejudice for failure to state a claim. (Doc.# 19 at 8-10.) The "addendum" to the Rule 54(b) motion seeks reconsideration regarding the dismissal of Defendants and Counts I-III in the September 12 Order and/or leave to amend the Third Amended Complaint. (Dkt. 38 at 1.) Both the Rule 54(b) and the "addendum" will be denied. I. "Addendum" In the "Addendum," Plaintiff requests reconsideration of the dismissal of Counts I-III and Defendants Robinson, Martinez, Fulton, Fansler, Luna, Clement and Does I-II from his

"Doc.#" refers to the docket number of documents filed in this action.
Document 52 Filed 06/30/2006 Page 1 of 3

Case 2:04-cv-00306-SRB

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Third Amended Complaint.2 (Doc.# 38.) Generally, motions to reconsider are appropriate only if the Court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for reconsideration should not be used to ask a court "to rethink what the court had already thought through, rightly or wrongly." Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rather, such arguments should be directed to the court of appeals. Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 309 (D. Ariz. 1992). As an initial matter, Plaintiff did not timely file a motion for reconsideration; Rule 7.2(g) of the Local Rules of Civil Procedure provides that absent good cause, any motion for reconsideration must be filed no later than 10 days after the filing of the Order that is the subject of the motion. In addition, Plaintiff has not presented newly discovered evidence or argued an intervening change in the controlling law. Further, although Plaintiff indicates that he believes the Court clearly erred, or that its decision was manifestly unjust, he essentially asks the Court to rethink what it has already determined. Such arguments are properly directed to the court of appeals at the conclusion of a case. Finally, the Court correctly resolved the issues presented in its prior Order. For these reasons, Plaintiff's addendum, construed as a motion for reconsideration, will be denied. II. Rule 54(b) Motion In his Rule 54(b) motion, Plaintiff asks the Court to enter partial judgment as to the Defendants and counts dismissed so that he may immediately appeal. He explains that he does not wish to amend the allegations determined to be insufficient to state a claim, but instead wishes to appeal the dismissal of claims immediately to avoid the loss of evidence Counts I-III all relate to Plaintiff's reclassification and transfer to the highest custody level. Plaintiff alleged that his procedural and substantive due process and equal protection rights were violated in connection with the reclassification proceedings. Count IV, which alleges that the conditions of confinement of the highest level custody inmates constitutes cruel and unusual punishment, sufficiently alleged an Eighth Amendment claim. -2Case 2:04-cv-00306-SRB Document 52 Filed 06/30/2006 Page 2 of 3
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and the fading of memories. Plaintiff does not specify any evidence or witnesses. Rule 54(b) provides that a court "may direct entry of a final judgment . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed. R. Civ. P. However, entry of partial judgment pursuant to Rule 54(b) should be sparingly granted so as to avoid piecemeal appeals. Gausvik v. Perez, 392 F.3d 1006, 1009 n.2 (9th Cir. 2004). Plaintiff has not demonstrated that the risks of delay outweigh the effect of piecemeal appeals. Therefore, the Court will deny his Rule 54(b) motion. Accordingly, IT IS ORDERED that Plaintiff's "addendum," construed as a motion for reconsideration, is denied. (Doc.# 38.) IT IS FURTHER ORDERED that Plaintiff's motion for entry of judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure is denied. (Doc.# 22.)

DATED this 30th day of June, 2006.

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