United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION FOR RECONSIDERATION
N. Parrish United States District Court Judge.
September 28, 2018, this court issued a memorandum decision
and order (the “Order”) granting in part and
denying in part defendants' motion to dismiss. (ECF No.
66). On October 19, 2018, plaintiff Michael Roy Parkinson
filed the instant motion to reconsider the Order, asking the
court to reconsider its conclusion that defendants were
entitled to qualified immunity with respect to certain
searches alleged in the complaint. (ECF No. 70). Defendants
responded in opposition on November 2, 2018. (ECF No. 74).
For the reasons below, plaintiff's motion for
reconsideration must be denied.
MOTION TO RECONSIDER STANDARD
warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion
for reconsideration may also be granted when “the court
has misapprehended the facts, a party's position, or the
controlling law.” Id.
however, a motion for reconsideration is not a vehicle to
“revisit issues already addressed or advance arguments
that could have been raised in prior briefing.”
Id.; see Nat'l Bus. Brokers, Ltd. v. Jim
Williamson Prods., 115 F.Supp.2d 1250, 1256 (D. Colo.
2000) (explaining that a motion to reconsider “is not
at the disposal of parties who want to ‘rehash' old
arguments” (citation omitted)). “Rather, as a
practical matter, to succeed in a motion to reconsider, a
party must set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior
decision.” Nat'l Bus. Brokers, Ltd., 115
F.Supp.2d at 1256 (internal brackets and quotation marks
omitted); see Christensen v. Park City Mun. Corp.,
No. 2:06-cv-202-TS, 2011 WL 772434, at *1 (D. Utah Feb. 28,
2011) (“[T]he doctrine of judicial economy requires
that reconsideration be limited to situations where the Court
misapprehended the facts, a party's position, or the
controlling law.” (internal quotation marks omitted)).
Parkinson does not identify any intervening change in
controlling law, nor does he provide evidence that was
previously unavailable. Rather, he maintains that the Order
“relie[d] on assumptions and conclusions that are not
entirely accurate.” (ECF No. 70). But with one
exception,  Mr. Parkinson does not identify any
inaccurate assumptions or conclusions, and instead proceeds
to present twelve pages of arguments on qualified immunity
that were plainly available when the underlying motion to
dismiss was litigated.
even if the court considered the arguments in Mr.
Parkinson's motion to reconsider, they would prove
unavailing. In the Order, the court reached only the clearly
established prong of qualified immunity, expressly
withholding any determination of whether the conduct alleged
violated the Fourth Amendment. Yet Mr. Parkinson's new
arguments pertain exclusively to the Fourth Amendment
analysis. Thus, even if cogent, Mr. Parkinson's arguments
do nothing to alter the court's conclusion that the
conduct alleged did not violate a right so “clear that
every reasonable official would have understood that what he
is doing violates that right.” See Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015). As a result, Mr.
Parkinson's motion must be denied.
reasons articulated, Mr. Parkinson's motion to reconsider
(ECF No. 70) is DENIED.
 Mr. Parkinson styles his motion as one
brought under Rule 59 of the Federal Rules of Civil
Procedure. But Rule 59 provides for a motion to alter or
amend a judgment, and there has been no judgment in this
case. Mr. Parkinson's motion, directed as it is to a
non-final order, is not explicitly provided for by the
Federal Rules of Civil Procedure. Nevertheless, “[i]t
is within the District Judge's discretion to revise [its]
interlocutory orders prior to entry of final judgment.”
See Anderson v. Deere & Co., 852 F.2d 1244, 1246
(10th Cir. 1988); Fed.R.Civ.P. 54(b) (“[A]ny order or
other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the
parties' rights and liabilities.”).
 The sole “assumption” Mr.
Parkinson purports to clarify relates to the court's
conclusion that Utah law mandates that every parole agreement
contain provisions by which parolees provide sweeping consent
to have their persons, homes, vehicles, property, and
personal effects searched at any time at any place by a
parole officer or a law enforcement officer (subject to
coordination between law enforcement and parole officers),
“with or without a search warrant, and with or without
cause.” See Utah Code § 77-23-301. He now
represents that the terms of his parole agreement-ignored by
the court upon Mr. Parkinson's objection that the
agreement was not properly before the court on a motion to
dismiss-have actually effected a greater diminution of his
reasonable expectations of privacy than would have been
achieved by the terms prescribed by the statute.
Inexplicably, Mr. Parkinson seeks to present his parole
agreement to correct the purported erroneous assumption while
expressly withholding the document from being considered as
evidence at this stage. Whatever the net result of this
evidentiary contortion, it remains entirely unclear how the
parole agreement would help Mr. Parkinson to establish that
the officers violated his clearly ...