Opinion
Case No. 04-3216-JWL.
November 9, 2004
MEMORANDUM AND ORDER
Plaintiff brought a Bivens action against defendants, fourteen Bureau of Prisons staff members who were employed at the United States Penitentiary in Leavenworth, Kansas during the times relevant to plaintiff's complaint, alleging that various terms of the conditions of his confinement violated his Eight Amendment rights provided by the Constitution. Plaintiff's case is currently before the court on plaintiff's "Motion for Reconsideration for Emergency" (Doc. # 13) dated August 23, 2004 which asks for reconsideration of the court's August 18, 2004 Order (Doc. # 10). In that order, the court denied plaintiff's "Motion for Ex-Parte Order to Appear in Evidence Before Court by U.S. Marshals As Proof of Current Abuse" (Doc. # 9), where plaintiff alleged that he and his cellmate were suffering ongoing abuse and the violation of their constitutional rights, and plaintiff asked the court that his cellmate and he be brought to the court as evidence of abuse and deprivation of constitutional rights. The court interpreted this motion as asking for either a temporary restraining order or a preliminary injunction.
Plaintiff's motion for reconsideration is denied as there is no need to correct clear error or prevent manifest injustice.
Pursuant to D. Kan. Rule 7.3(b), a motion seeking reconsideration of a non-dispositive order "shall be based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." Whether to grant or deny a motion for reconsideration is committed to the district court's discretion. See Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1235 (10th Cir. 2001).
Plaintiff's request for a temporary restraining order and/or preliminary injunction was denied by the court because plaintiff did not persuasively identify any irreparable injury he might suffer in the absence of the court appearance and federal investigation he requested, and the actions at issue involved matters clearly within the expertise of corrections officials and subject to administrative review through a prison grievance. See Country Kids `N City Slick, Inc. v. Sheen, 77 F.3d 1280, 1283 (10th Cir. 1996); Lundgrin v. Claytor, 619 F.2d 61, 62 (10th Cir. 1980) (standards for granting temporary restraining order or preliminary injunction).
Here, plaintiff argues that denial of his prior motion was inappropriate based upon the need to correct clear error or prevent manifest injustice, arguing that he could suffer irreparable injury, psychological injury, and be denied due process of law. In his motion for reconsideration, plaintiff alleges as ongoing injuries that he has dirty linen, a hot room, has not showered for twenty days, he has no property, no "legal property" and no cleaning materials. These accusations, however, are inconsistent with the Martinez report dated September 20, 2004, stating that plaintiff has access to a shower in his cell, had access to clean linen through the laundry service, and is given cleaning supplies once a week. There is no mention of plaintiff being denied property or legal material.
In plaintiff's response to the Martinez report dated October 4, 2004, after plaintiff's motion for reconsideration was filed, he does not object to the finding that there is not ongoing abuse, but instead disputes the nature, time, and place of past abuse. Because there is no evidence or even the allegation of continuing abuse, the court finds that plaintiff has not identified any irreparable injury he might suffer in the absence of the court appearance and federal investigation he requested. The court, therefore, denies plaintiff's motion for reconsideration as there is no need to correct clear error or prevent manifest injustice.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's "Motion for Reconsideration for Emergency" (Doc. # 13) is denied.
IT IS SO ORDERED.