Downs v. California Board of Prison Terms et al
Filing
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ORDER DENYING 39 Plaintiff's Motion for Reconsideration and ORDER DENYING AS MOOT All Pending Motions (Docs. 40 , 41 , 42 ), signed by Magistrate Judge Gerald B. Cohn on 11/7/2011. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORY DOWNS,
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Plaintiff,
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CASE NO. 1:09-cv-00714-GBC (PC)
ORDER DENYING G PLAINTIFF’S MOTION
FOR RECONSIDERATION
(Doc. 39)
v.
CALIFORNIA BOARD OF PRISON TERMS,
et al.,
ORDER DENYING AS MOOT ALL PENDING
MOTIONS
Defendants.
(Docs. 40, 41, 42)
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I.
Plaintiff’s Motion for Reconsideration
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A.
Procedural History
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Plaintiff Gregory Downs (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 22, 2009. (Doc. 1). On
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September 11, 2009, the Court screened the complaint and dismissed the complaint with leave to
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amend. (Doc. 13). Plaintiff filed the first amended complaint on April 5, 2010. (Doc. 22). On July
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20, 2010, and October 29, 2010, Plaintiff filed motions to amend the complaint (Docs. 30, 32) and
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on November 18, 2010, Plaintiff’s second amended complaint was submitted and lodged. (Doc. 33).
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On May 11, 2011, the Court granted Plaintiff’s request to amend the complaint, screened Plaintiff’s
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second amended complaint submitted on November 18, 2010, and dismissed action without
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prejudice for failure to state a claim. (Doc. 37). On May 23, 2011, Plaintiff filed a motion for
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reconsideration. (Doc. 39).
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B.
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Under Federal Rule of Civil Procedure 59(e), a party may move to have the court amend its
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judgment within twenty-eight days after entry of the judgment. Fed. R. Civ. P. 59(e). ‘Since specific
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grounds for a motion to amend or alter are not listed in the rule, the district court enjoys considerable
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discretion in granting or denying the motion.’ Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th
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Cir. 2011) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc) (per
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curiam)). But amending a judgment after its entry remains ‘an extraordinary remedy which should
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be used sparingly.’ Id. In general, there are four basic grounds upon which a Rule 59(e) motion may
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be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the
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judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable
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evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is
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justified by an intervening change in controlling law. Id.
Reconsideration
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In his motion for reconsideration, Plaintiff argues that the Court did not provide him a
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deadline to file an objection to the magistrate judge’s findings and recommendations. However, on
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May 4, 2009, Plaintiff consented to magistrate jurisdiction and, therefore, dispositive motions need
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not be address through findings and recommendations. Local Rule 302.
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In his motion for reconsideration, Plaintiff directs the Court to one of his previous habeas
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actions which addressed the same issues raised in this case and where Defendants argued that the
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action should be filed as a § 1983 action. (Doc. 39 at 1-2 citing Downs v. California Board of Prison
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Terms II, 3:10-cv-02029-H-MDD (dismissed April 28, 2011)). Plaintiff argues that his claim is
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appropriately a civil rights claims as it is challenging the due process he received premised on the
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California Board of Prison Terms’ failure to turn over exculpatory evidence for Plaintiff’s parole
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consideration hearings. However, Plaintiff has already brought the same claims in another § 1983
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action in which the court dismissed Plaintiff’s action as barred pursuant to Heck v. Humphrey, 512
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U.S. 477 (1994). Downs v. Sacramento Dist. Attorney Office, No. 2:09-cv-1105-KJN, 2010 WL
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2765895 (E.D. Cal. July 13, 2010).
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As with this instant action, in Downs v. Sacramento Dist. Attorney Office:
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Plaintiff alleges various due process violations in the course of various parole
hearings, primarily related to efforts to obtain exculpatory evidence for presentation
at his parole hearing. Plaintiff claims his conviction was obtained through the use
of perjured testimony, but seeks monetary damages for defendants' alleged reliance
on perjured testimony and Board Commissioners' failure to obtain exculpatory
evidence to consider during his parole hearing in violation of his due process rights.
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Downs v. Sacramento Dist. Attorney Office, No. 2:09-cv-1105-KJN, 2010 WL 2765895 at *1 (E.D.
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Cal. July 13, 2010). The court in Downs v. Sacramento Dist. Attorney Office distinguished the facts
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and findings in the case from that of the Wilkinson v. Dotson, 544 U.S. 74 (2005). The court in
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Downs v. Sacramento Dist. Attorney Office observed:
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The Supreme Court decision in Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242,
161 L.Ed.2d 253 (2005), permitting a § 1983 plaintiff to challenge parole procedures,
is distinguishable. In Dotson, the Court held that the lawsuit was permissible because
the prisoner's claim did not “necessarily spell speedier release” but merely would
have resulted in a new hearing. Id. at 82. Here, by contrast, plaintiff is asserting,
essentially, that he would not have been convicted had the perjured testimony not
been used, or, on the other hand, he would have been earlier paroled had the parole
board received the alleged exculpatory evidence demonstrating his conviction was
wrongfully obtained.
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Downs v. Sacramento Dist. Attorney Office, No. 2:09-cv-1105-KJN, 2010 WL 2765895 at *3 (E.D.
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Cal. July 13, 2010).
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The Court agrees with the analysis and conclusions set forth in Downs v. Sacramento Dist.
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Attorney Office, and therefore does not find reconsideration warranted in this action. Moreover, even
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if the Court were to grant reconsideration, the action would be barred by res judicata1 as Plaintiff’s
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current case re-litigates claims previously decided on the merits in Downs v. Sacramento Dist.
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The doctrine of res judicata bars the re-litigation of claims previously decided on their merits.
Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). “The elements necessary to establish
res judicata are: ‘(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.’”
Headwaters, Inc., 399 F.3d at 1052 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322
F.2d 1064, 1077 (9th Cir. 2003)). The court in Downs v. Sacramento Dist. Attorney Office, No. 2:09-cv-1105-KJN,
made a final judgment on the merits of the case, and dismissed Plaintiff’s action with prejudice. “There is privity
between officers of the same government so that a judgment in a suit between a party and a representative of the
United States is res judicata in relitigation of the same issue between that party and another officer of the
government.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940). Although Downs v.
Sacramento Dist. Attorney Office, No. 2:09-cv-1105-KJN, 2010 W L 2765895, names different defendants, the
defendants are of the same Board of Prison Terms, CDCR and the Sacramento County District Attorney’s Office and
Defendant Susan Fisher is the same in both actions. Although Plaintiff add different facts and legal theories, Downs
v. Sacramento Dist. Attorney Office stems from the same transactional nucleus of facts in this case. For example,
both actions highlight the December 17, 2004 secret meeting and that those appointed to represent him failed to
obtain exculpatory evidence. (Doc. 33 at 6, 26-27).
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Attorney Office, No. 2:09-cv-1105-KJN, 2010 WL 2765895 and many of the Defendants would be
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dismissed on immunity grounds.2
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Based on the foregoing, the Court HEREBY ORDERS that:
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1.
Plaintiff’s motion to reconsider filed May 23, 2011, is DENIED (Doc. 39; and
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All pending motions in this action are DENIED as moot (Doc. 40, 41, 42).
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IT IS SO ORDERED.
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Dated:
0jh02o
November 7, 2011
UNITED STATES MAGISTRATE JUDGE
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For example, Plaintiff cannot bring an action against Judge Ronal Tochterman since his actions stem from
judicial functions and is absolutely immune. Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008); In re Complaint
of Judicial Misconduct, 366 F.3d 963, 965 (9th Cir. 2004).
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