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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Armando Roberto Aros Plaintiff, vs. Robinson, et al., ) ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0306-PHX-SRB ORDER

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Defendants.
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Plaintiff Armando Roberto Aros is seeking reconsideration of the Court's order
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denying his request for an extension of time to respond to Director of the Arizona
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Department of Corrections (ADC) Dora B. Schriro, Deputy Warden David R. Rivas, and
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Corrections Officers Schaulin and Duarte's Motion for Summary Judgment (Doc. #90).
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Plaintiff also moved for summary judgment (Docs. ## 92, 93). The Court will deny
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Plaintiff's motions.
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I. Motion for Reconsideration
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Plaintiff moved for reconsideration of the Court's order denying his request for
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enlargement of time to file a response to Defendant's Motion for Summary Judgment (Doc.
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# 90). Plaintiff maintained that he was prevented from working on his response because he
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was denied his personal property for 9 days and his legal materials for 26 days, and he
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expended significant amounts of time documenting actions taken against him which impeded
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his attempts to access the Court (Id.).
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Case 2:04-cv-00306-SRB

Document 100

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Motions for reconsideration should be granted only in rare circumstances. Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D.Ariz. 1995). "Reconsideration is appropriate if the district 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 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be used for the purpose of asking a court "`to rethink what the court had already thought through -- rightly or wrongly.'" Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983)). Plaintiff has not demonstrated his entitlement to reconsideration. Defendants filed their Motion for Summary Judgment in June 2006 (Doc. #50). Considering several extensions of time, Plaintiff had more than six months to file a response (Doc. #80). The Court, in granting the last extension of time, informed Plaintiff that no further requests for extension would be considered or granted (Doc. # 80). Despite the Court explicit warnings, Plaintiff took significant time away from preparing his response to prepare another request for extension of time. In addition, Plaintiff only complains about 35 days of inability to work on his response as a result of the alleged confiscation of his property. As noted, Plaintiff had six months to prepare this response. Finally, the Court has been lenient with Plaintiff with regard to his filings and his request. Accordingly, the Court will deny Plaintiff's Motion for Reconsideration. II. Motion for Summary Judgment Because Plaintiff's Motion for Reconsideration will be denied and Plaintiff's action has been dismissed, Plaintiff's Motion for Summary Judgment will be denied as moot. However, even had the Court been privy to Plaintiff's evidence, the Court's determination that Defendants were entitled to summary judgment would not have been altered. In his motion and response, Plaintiff presented evidence that (1) the temperature in the pod was in the mid-nineties; (2) Plaintiff was not provided brooms or mops and only given liquid cleaner and brushes once a week in order to clean his cell; (3) Plaintiff was not
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provided a "trash receptacle;" (4) Plaintiff was not provided a pillow; (5) visitations were noisy and he had to yell in order to be heard; and (6) there was excessive pigeon feces in the recreational cell (Docs. ## 92, 93). First, although the temperature was in the mid-nineties, Defendants continually maintained the cooling system in order to alleviate the heat. Moreover, Plaintiff was not injured as a result of the heat, merely uncomfortable with the situation. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (providing that "[t]o the extent that . . . conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society"). The combination of the cooling system and clothing policy did not result in a denial of the minimal civilized measure of life's necessities. See Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000). Second, Plaintiff was provided sufficient cleaning supplies on a regular basis and, having been housed in a single-man cell, has not demonstrated that the lack of a trash bag resulted in unsanitary conditions. Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995) (providing that "subjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment"). Plaintiff does not contest that the trash was removed from his cell on a regular basis, or was allowed to accumulate to such a degree that his cell was unsanitary. Defendants' concession that there is a "problem" does not result in a conclusion that the "problem" has constitutional dimensions. Third, Plaintiff is not per se constitutionally entitled to a pillow. Fourth, Plaintiff was allowed visitors and the inability to communicate without yelling did not violate his constitutional rights. Finally, Defendants did not know of and disregard a substantial risk of harm; Defendants admitted there was a pigeon problem and continued to attempt to rectify the situation. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The fact that Plaintiff did not like the solution did not result in a violation of his constitutional rights. Accordingly, even considering Plaintiff's evidence, the Court would still have granted Defendants' Motion for Summary Judgment and dismissed the instant action.
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IT IS ORDERED: (1) Plaintiff's Motion for Reconsideration (Doc. # 90) is denied. (2) All other pending motions are denied as moot.

DATED this 6th day of April, 2007.

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