7/29/2019 FEDERAL COURT GRANTS WARDEN MOTION FOR RECONSIDERATION: DEFENDANT ASSISTANT POLICE CHIEF ROBIN

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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Roy Warden,

Plaintiff,v.

Richard Miranda, individually and in his officialcapacity as Chief of the Tucson PoliceDepartment, et al.,

Defendants._______________________________________

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CR 11-460 TUC DCB(BPV)

ORDER

Subsequent to dismissal of Plaintiffs case in part, the Plaintiff filed a Motion for

Reconsideration of the Courts dismissal of Count One as to Defendant Robinson. The

Honorable Cindy K. Jorgenson called for Defendants to file a response. Judge Jorgenson

withdrew from the case, and it has been reassigned to this Court.The Plaintiff is correct that allegations in the First Amended Complaint, Count One,

are within the two year statute of limitation period, to the extent he alleges that Defendant

Robinson violated Plaintiffs First Amendment rights on May 1, 2010, when she prevented

Plaintiff from entering Armory Park, Tucson, Arizona.

It is true that Plaintiff failed to raise this argument in his objection to the Report and

Recommendation, and thereby may be held to have waived it. 28 U.S.C. 636(b), Wang v.

Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005), United States v. Reyna-Tapia, 328 F.3d

1114, 1121-22 (9th Cir.2003) (en banc). And, a motion for reconsideration based on

arguments that could have been raised, but were not raised, before judgment was entered may

not properly be granted. 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil

2nd 2810.1 at 127-28; Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citing Kona

Case 4:11-cv-00460-DCB-BPV Document 62 Filed 02/06/13 Page 1 of 3

7/29/2019 FEDERAL COURT GRANTS WARDEN MOTION FOR RECONSIDERATION: DEFENDANT ASSISTANT POLICE CHIEF ROBIN

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Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th cir. 2000)). Finally, motions for

reconsideration are appropriate only in rare circumstances. Above the Belt, Inc. v. Mel

Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). "The purpose of a motion for

reconsideration is to correct manifest errors of law or fact or to present newly discovered

evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985).

Motions to reconsider are generally treated as motions to alter or amend the

judgment under Federal Rules of Civil Procedure ("Rule") 59(e). See In re Agric. Research

& Tech. Group, Inc., 916 F.2d 528, 542 (9th Cir. 1990);MGIC Indem. Corp. v. Weisman,

803 F.2d 500, 505 (9th Cir. 1986). A motion to amend a judgment based on arguments that

could have been raised, but were not raised, before judgment was entered may not properly

be granted. 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2nd 2810.1

at 127-28; Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citing Kona Enters., Inc.

v. Estate of Bishop, 229 F.3d 877, 890 (9th cir. 2000)).

Specific grounds for a motion to amend or alter are not listed in the rule, but

generally there are four basic grounds for a Rule 59(e) motion: 1) the movant may

demonstrate that the motion is necessary to correct manifest errors of law or fact upon which

the judgment is based; 2) the motion may be granted so that the moving party may present

newly discovered or previously unavailable evidence; 3) the motion will be granted if

necessary to prevent manifest injustice, such as serious misconduct of counsel may justify

relief under this theory, and 4) a motion may be justified by an intervening change in

controlling law. 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2nd

2810.1 (citations omitted).

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7/29/2019 FEDERAL COURT GRANTS WARDEN MOTION FOR RECONSIDERATION: DEFENDANT ASSISTANT POLICE CHIEF ROBIN

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Here, the Court denied dismissal in part to allow Count One to proceed as to others,

who on May 1, 2010, threatened Plaintiff with arrest. In order to prevent a manifest injustice,

the Court grants the Motion for Reconsideration to allow the Plaintiff to proceed against

Defendant Robinson for allegedly preventing Plaintiff from entering Armory Park on May

1, 2010.

Accordingly,

IT IS ORDERED that Plaintiffs Motion for Reconsideration (Doc. 50) is

GRANTED. The case remains referred to Magistrate Judge Bernardo P. Velasco.

DATED this 6th day of February, 2013.

Case 4:11-cv-00460-DCB-BPV Document 62 Filed 02/06/13 Page 3 of 3