Hooper v. McDaniel et al
Filing
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ORDER DENYING 89 Motion to reconsider. FURTHER ORD DENYING 90 Motion for property restoration. FURTHER ORD GRANTING 95 Motion for leave to file. Clerk SHALL DETACH and FILE petitioner's reply (# 95 -1). Signed by Judge Larry R. Hicks on 2/20/2013. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DAVID OWENS HOOPER,
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Petitioner,
vs.
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E.K. MCDANIEL, et al.,
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Respondents.
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3:11-cv-00221-LRH-VPC
ORDER
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On September 14, 2012, the court granted in part respondents’ motion to dismiss many claims
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in this petition as untimely, procedurally barred or for failure to state a claim for which habeas relief may
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be granted (ECF #87). Before the court is plaintiff’s motion for district judge to reconsider the order
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granting the motion to dismiss (ECF #89).
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Where a ruling has resulted in final judgment or order, a motion for reconsideration may be
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construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure
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59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J
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Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994).
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Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for the
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following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
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or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief
from the operation of the judgment.
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Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick Garin
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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a party
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must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior
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decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986),
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aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of the Federal
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Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be filed no later
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than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P. 59(e) “should
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not be granted, absent highly unusual circumstances, unless the district court is presented with newly
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discovered evidence, committed clear error, or if there is an intervening change in the controlling law.”
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Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253,
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1255 (9th Cir. 1999).
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In the order of September 14, 2012, the court granted respondents’ motion to dismiss the petition
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in part because many of the claims were procedurally barred or failed to state claims cognizable in a
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habeas corpus action (ECF #87). Petitioner has failed to make an adequate showing under either Rule
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60(b) or 59(e) that this court’s order granting the motion to dismiss his petition should be reversed.
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Next, petitioner has filed a motion for property restoration/non liabilities exemption (ECF #90).
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Petitioner appears to argue that prison personnel have confiscated some of his property, including certain
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documents that he would file in this matter as exhibits. The court has briefly reviewed respondents’
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answer to the petition (ECF #91), petitioner’s reply (ECF #95-1), and the many exhibits on file (see, e.g.,
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ECF #s 59, 61-63). It appears to the court at this time that the parties have provided the documents
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necessary for a determination of the petition’s merits. Of course, the court can direct respondents or both
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parties to supplement the record at a later date, as warranted.
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IT IS THEREFORE ORDERED that petitioner’s motion for district judge to reconsider order
(ECF #89) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for property restoration
order/nonliabilities exemption (ECF #90) is DENIED.
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IT IS FURTHER ORDERED that petitioner’s motion for leave to file belated reply (ECF #95)
is GRANTED. The Clerk SHALL DETACH and FILE petitioner’s reply (ECF #95-1).
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DATED this 20th day of February, 2013.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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