Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 State of Arizona, et al., 13 Defendants. 14 15 16 vs. Kristofer M. Seneca, Plaintiff,

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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No. CV03-1350-PHX-SRB ORDER

Pending before the Court is Plaintiff's Motion for Relief From Judgment or Motion 17 to Supplement Record on Appeal. Defendants have responded on the merits and also filed 18 a Notice of Lack of Jurisdiction. Plaintiff filed a memorandum on October 27, 2006, 19 addressing both Defendants' Response and the Notice of Lack of Jurisdiction. On November 20 3, 2006, the Court received a letter from the Plaintiff stating that he had received an order 21 from the Court of Appeals indicating that it would consider staying the appeal so that the 22 Court could consider the pending motion. 23 The relevant procedural history is accurately summarized in Defendants' Response to 24 the Motion for Relief From Judgment. Final judgment was entered on July 7, 2006, and 25 Plaintiff filed his Notice of Appeal on July 18, 2006. The filing of his Notice of Appeal 26 divested this Court of jurisdiction except in very limited circumstances. Plaintiff suggests 27 that those limited circumstances apply here and if they do not apply, he has advised the Court 28
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that the Ninth Circuit would favorably considered a Motion for Limited Remand if the Court were inclined to grant the Motion for Relief From Judgment. With respect to the Motion to Supplement the Record on Appeal, FRAP10(e) (2) does permit this Court to certify and forward a supplement record. The circumstances where this occurs, however, are when a difference arises about whether the record truly discloses what occurred in the district court or when something material is omitted from or misstated in the record by error or accident. What Plaintiff seeks to do in his Motion to Supplement the Record on Appeal is to add to the record numerous documents that were not considered by this Court in connection with its earlier rulings and therefore are not proper items to supplement the record. Plaintiff's Motion for Relief From Judgment relies upon Rule 60(b)(2), newly discovered evidence, and Rule 60(b)(3), fraud, stating that after this Court ruled that Count I of his Complaint was moot due to a policy change, another inmate has had problems having his religious preference change approved. Plaintiff also seeks to raise a new issue concerning whether he is being precluded from attending religious services in accordance with ADOC policy, a matter not raised in Plaintiff's Complaint. The motion also complains about two specific religious items that Plaintiff claims he is not permitted to have because they do not fit within his authorized religious articles box. This was also not an issue before the Court as framed by Plaintiff's Complaint. The issue before the Court concerned a numerical limitation on religious items. The Court did not review because it was not properly before it, any specific religious items that Plaintiff wished to have. Therefore, even if this Court presently had jurisdiction to consider the Motion for Relief From Judgment or if the Court were granted a limited remand to consider this motion it would be denied. The matters raised in the Motion for Relief From Judgment and the Motion to Supplement Record on Appeal are not supported by Rule 60(b)(2) or (3) of the Federal Rules Civil Procedure or Rule 10(e) of the Federal Rules of Appellate Procedure. Rather, Plaintiff appears to be attempting to raise new issues not previously presently to this Court and likely unexhausted under ADOC Grievance Policy. -2Case 2:03-cv-01350-SRB Document 150 Filed 11/30/2006 Page 2 of 3

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IT IS ORDERED denying Plaintiff's Motion for Relief From Judgment or Motion to Supplement Record on Appeal. (doc. 144). DATED this 29th day of November, 2006.

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