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

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) Plaintiff, ) v. ) Richard Miranda, individually and in his official ) capacity as Chief of the Tucson Police ) ) Department, et al., ) ) Defendants. _______________________________________ ) Roy Warden,

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

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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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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.