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

LMH

1 2 3 4 5 6 7 8 9 10 11 12 State of Arizona, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a civil rights action filed by a state prisoner. By Order and Judgment filed April 29, 2005 (Dkt. #14-#15), the Court dismissed the action for failure to state a claim. Plaintiff filed a motion for reconsideration (Dkt. #16.) The Court will deny the motion. A. Characterization of motion. Because Plaintiff submitted his motion for reconsideration after entry of judgment, the Court must treat it either as a motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, or as a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See American Ironworks & Erectors, Inc. v. North Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). A Rule 59 motion must be filed within ten days of entry of judgment. FED. R. CIV. P. 59(e). Plaintiff's motion was timely filed. Accordingly, the Court will characterize it under Rule 59(e). Plaintiff has filed a notice of appeal. The Court retains jurisdiction over Rule 59(e) motions even when filed after a notice of appeal. See Tripati v. Henman, 845 F.2d 205 (9th
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Robert Kroncke, Plaintiff, vs.

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No. CV 03-2481-PHX-MHM (MEA) ORDER

Case 2:03-cv-02481-MHM--MEA

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Cir. 1988) (per curiam); see also FED. R. APP. P. 4(a)(4)(A)(v) (time for filing appeal begins to run after disposition of a timely filed motion for a new trial under Rule 59). B. Rule 59(e). "A motion for reconsideration under Rule 59(e) `should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc, per curiam) (emphasis in original) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)), cert. denied, 529 U.S. 1082 (2000). This type of motion seeks "a substantive change of mind by the court." Tripati, 845 F.2d at 206 n.1(quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)). C. Analysis of Plaintiff's Contentions. 1. Count I Count I of Plaintiff's First Complaint was dismissed as time-barred. The Court rejected Plaintiff's tolling argument under ARIZ. REV. STAT. § 12-504(a), which permits tolling while an action is pending as long as the action is dismissed for a reason other than, inter alia, a judgment on the merits. Under Arizona law, the word "merits" "embraces a consideration of substance, not of form; of legal rights, not of mere defects of procedure or practice or technicalities thereof." Columbia Parcar Corp. v. Arizona Dep't of Transp., 971 P.2d 1042, 1044 (Ariz. Ct. App. 1999) (citation omitted). Plaintiff contends that the tolling provision should have been applied because the Arizona Court of Appeal's dismissal for lack of jurisdiction was not a judgment on the merits. At the outset, Plaintiff asserted that the trial court summarily dismissed his action "based on a false avowal of Assistant Attorney General Michael T. O'Toole that I only made allegations as to a lost legal box." (First Am. Compl. at 4-B, Dkt. #7.) This determination was clearly on the substance of the claims presented. Plaintiff, however, further alleged that on appeal, the Arizona Court of Appeals ruled that the state courts had "no jurisdiction to entertain constitutional claims, even those requesting injunctive relief, if the State is a party." -2Document 21 Filed 08/29/2005 Page 2 of 6

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(First. Am. Compl at 4-b, Dkt. #7.) States have concurrent jurisdiction with the federal courts to enforce rights created by federal law, including civil rights. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508 (1962); Baker v. Rolnick, 110 P.3d 1284, 1288 (Ariz. 2005). For civil rights actions, the Arizona courts apply federal substantive law, rules and policies. Baker, 110 P.3d at 1289. The State of Arizona is not a "person" for purposes of 42 U.S.C. § 1983. This principle is applied by the state courts of Arizona. See, e.g., Garcia v. State, 768 P.2d 649 (Ariz. 1988); Carroll v. Robinson, 874 P.2d 1010, 1015-16 (Ariz. Ct. App. 1994). The decision by the Arizona Court of Appeals was therefore also on the substance of the claims presented. Consequently, the Court did not err in dismissing this claim on the basis that the savings provision did not apply to toll the statute of limitations. 2. Count II For Count II, Plaintiff asserts that the Court ignored his allegation that his guitar strings were destroyed. This claim was dismissed as time-barred in the first screening order. See Dkt. #5 at 4, 6. Plaintiff should not have raised it again in his First Amended Complaint, and there was no need for this Court to address it again in the second screening order. Plaintiff also alleges that the Court ignored his claim that his "cash money" was actually destroyed. It is unclear what he means by this allegation. In any case, Plaintiff apparently failed to read the sentence where the Court stated, "as described in the Court's earlier Order, Plaintiff's due process claim for the intentional or negligent destruction of his property fails to rise to the constitutional level." (Ord. at 14, Dkt. #15.) Plaintiff's allegations regarding the destruction of property had already been addressed. Plaintiff also contends that the Court mischaracterized his allegations regarding the refusal to provide copies. The Court's conclusion that Plaintiff violated the one claim per count is not altered by this contention. Accordingly, the Court did not commit clear error in dismissing Count 2.

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3. Count III For Count III, Plaintiff reasserts the same allegations regarding his claim of denial of the right of access to the courts. He therefore does not meet the standard for Rule 59(e). 4. Count VI For Count VI, Plaintiff contends that the Court erroneously presumed that Plaintiff could have submitted handwritten copies in a proceeding in Arizona state court when a prison paralegal refused to make copies for him. He has cited nothing indicating that handwritten copies are not permitted. To the contrary, Arizona law indicates that

handwritten materials are permitted. See ARIZ. R. CIV. P. 10(d) ("All pleadings and other papers filed, other than printed forms, shall be clearly handwritten or typewritten on one side of the page only."); see also Knight v. Superior Court In and For County of Maricopa, 779 P.2d 1290, 1295-96 (Ariz. Ct. App. 1989) (indicating that appellate rules, rules of criminal procedure and rules of the Maricopa County Superior Court permit handwritten materials). The court also permits waiver of the requirements on its own motion or upon request of a party. ARIZ. R. CIV. P. 10(d). In light of this authority, the paralegal's refusal to provide Plaintiff with photocopies therefore did not deny Plaintiff the right of access to the courts. Plaintiff could have submitted handwritten copies, and he could have requested permission from the court to forgo the requirement. Given this conclusion, Plaintiff's additional allegations disputing when he suffered actual injury are nonessential. Accordingly, the Court did not commit clear error in dismissing this count. 5. Count VII Regarding Count VII, Plaintiff claims that the Court erred when it only reviewed a claim that mailroom staff violated Plaintiff's right to equal protection by prohibiting him from mailing a 500 page list of issue to his appointed counsel. Plaintiff asserts that he did not raise this claim. His First Amended Complaint, however, expressly states: In May to June of 1998 prison mailroom staff in Central Unit refused to allow me to mail a list (-500 pages) of the issues I wanted raised to my appointed -4-

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counsel. For this reason alone, my counsel withdrew because he did not know what issues I wanted raised. (First Am. Compl. at 6-G.) Despite Plaintiff's protestation to the contrary, the claim was alleged. The Court informed Plaintiff that it would not review any other claim under the oneclaim per count rule, about which Plaintiff had previously been warned. Plaintiff's contention regarding the claims reviewed by the Court underscores the importance of adhering to the one-claim per count rule. Accordingly, the Court did not commit any clear error in dismissing Count VII. Moreover, Plaintiff's remaining contention fails. He asserts that his right to equal protection was violated because as a pro se litigant in post-conviction proceedings, he was charged by the prison for copies whereas represented inmates were not. Represented inmates obviously do not require copy services at the prison. Accordingly, Plaintiff cannot claim that he is being treated differently than similarly situated inmates because the represented inmates are not similarly situated. 6. State law tolling Plaintiff's remaining contentions regarding the application of state law tolling are simply reassertions of earlier allegeations. Accordingly, they fail to show that the Court committed clear error. D. Disrespectful language. The Court notes that Plaintiff's motion is laden with disrespectful language regarding the Court's competence and handling of his action. Many of the attacks are based upon Plaintiff's incorrect assumption that the Court has not read his allegations. The Court assures Plaintiff that his allegations have been carefully read and considered, as is evidenced by the numerous detailed Orders in this action. Plaintiff's disagreement with the Court's findings and conclusions is not a basis for personal attack on the Court but instead is a matter he can raise on appeal. The type of insults in Plaintiff's motion serves no proper purpose in litigation. See FED. R. CIV. P. 11. Plaintiff is warned that if he continues to include insulting

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and disrespectful language in his pleadings, whether in this action or in others that he has filed in this Court, they will be stricken. IT IS THEREFORE ORDERED that Plaintiff's Motion for Reconsideration (Dkt. #16), construed as a motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, is denied. DATED this 25th day of August, 2005.

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