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Blankenship v. Shinn

United States District Court, D. Hawaii

April 8, 2016

MARK A. BLANKENSHIP, FED, REG. #83718-022, Plaintiff,


Leslie E. Kobayashi United States District Judge.

Before the Court is pro se Plaintiff Mark A. Blankenship's ("Plaintiff") Motion for Reconsideration ("Motion"), filed on March 28, 2016. [Dkt. no. 120.] The Court did not request any further briefing on this matter, and finds it suitable for disposition without a hearing pursuant to Rule LR7.2(e) of the Local Rules of Practice of the United States District Court for the District of Hawai'i ("Local Rules"). After careful consideration of the Motion and the relevant legal authority. Plaintiff's Motion is HEREBY DENIED for the reasons set forth below.


The background of this case is well known to the parties, and the Court will only repeat the facts relevant to the instant Motion. On March 15, 2016, the Court issues its Order Granting Defendant Lee Shellko's Motion to Dismiss Second Amended Complaint (“3/15/16 Order”). [Dkt. no. 119.[1] In the 3/15/16 Order, the Court stated that “[t]he Third Amended Complaint[2] fails to state a claim upon which relief can be granted; the Court has provided Plaintiff with many opportunities to amend the complaint; and Plaintiff has been unable to cure the defects in the complaint.” [3/15/16 Order at 12-13 (footnote omitted).] The Court dismissed Plaintiff’s Third Amended Complaint with prejudice. [Id. at 13.]


This Court has stated that:

[T]he Motion for Reconsideration “must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” See Davis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D. Hawaii June 2, 2014) (citation and internal quotation marks omitted). This district court recognizes three circumstances where it is proper to grant reconsideration of an order: “(1) when there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or prevent manifest injustice.” Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585, at *1 (D. Hawaii May 1, 2013) (citing School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)). “Mere disagreement with a previous order is an insufficient basis for reconsideration.” Davis, 2014 WL 2468348, at *3 n. 4 (citations and internal quotation marks omitted).

Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 14-00135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25, 2014).


In the Motion, Plaintiff asserts that he misstated the day of the week on which he arrived at the Federal Detention Center in Honolulu, Hawai`i (“FDC”). [Mem. in Supp. of Motion at 1-2.] According to Plaintiff, he arrived at FDC on Wednesday, June 6, 2012, and he went to court on Thursday, June 7, 2012. Plaintiff argues that this corrected timeline means that he saw Defendant Lee Shellko (“Defendant Shellko”) on June 8, 2012 - before the fall.[3] See id. at 2 (“Mr. Shellko[’]s defense all along has been that he was gone before I returned from Court on Friday. Your Honor I made it clear as did intake that stairs were beyond my ability to negotiate. Mr. Shellko was informed by intake of this on Thur June-7-2012 yet refused to listen.”). Insofar as Plaintiff claims that this constitutes new evidence or an attempt to correct a clear error - and thus provides grounds for the Court to grant the Motion, Plaintiff is incorrect. In its Order Granting Defendants’ Motion for Dismissal or Summary Judgment of Defendants David Shinn and Lee Shellko, filed on September 30, 2015 (“9/30/15 Order”), [dkt. no. 97, [4] the Court explained:

Plaintiff arrived at FDC on June 6, 2012, and was assigned to the Special Housing Unit, which consists of only one floor. Plaintiff went to court at 10:07 a.m. on Thursday, June 7, 2012, and, when he returned to FDC at 2:53 p.m., he was moved to a general population unit and assigned a lower bunk located on an upper tier. On June 9, 2012, Plaintiff fell down a flight of stairs. Plaintiff was taken to Queen’s Medical Center (“QMC”), and he returned early in the morning on June 10, 2012. On June 11, 2012, Plaintiff was moved to a lower tier.

[9/30/15 Order at 6-7 (citations and internal quotation marks omitted).] Moreover, the Court noted that “[i]t is undisputed that Defendant Shellko finished work at 2:00 p.m. on June 7, 2012, and did not return until Monday, June 11, after Plaintiff’s fall.” [Id. at 9 (footnote and citation omitted).] The Court, thus, has already considered the timeline Plaintiff lays out in the Motion. Moreover, using that timeline, the Court dismissed the Eighth Amendment claim against Defendant Shellko for failure to state a claim. See 9/30/15 Order at 10.

Plaintiff also questions whether the Court erred in failing to grant default judgment in his favor after “the time to respond to service was greatly ignored by Plaintiff.” [Motion at 2.] Plaintiff filed a document titled Motion Rule 55 on October 17, 2014 (“Rule 55 Motion”). [Dkt. no. 25.] In his Amended Order Denying Request for Entry of Clerk’s Default; and Granting Extension of Time to Perfect Service, filed on November 3, 2014 (“11/3/14 Order”), [dkt. no. 35, ] the magistrate judge construed the Rule 55 Motion as a motion “simultaneously seeking entry of default and default judgment against Defendant D. Shinn.” [11/3/14 Order at 1.] The magistrate judge concluded that “service of the summons and Complaint has not been completed and Plaintiff’s Motion for entry of default is denied, ...

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