(PC)Herrera v. Nareddy et al, No. 1:2012cv00982 - Document 39 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's purported second motion opposing the Magistrate's recommendation to dismiss the action as to 33 , construed as a request for reconsideration of the November 29, 2012 order adopting Findings and Recommendations and dismissing the action with prejudice and judgment thereon, be DENIED by the District Judge ; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 12/21/12. Objections to F&R due by 1/14/2013(Martin-Gill, S)
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(PC)Herrera v. Nareddy et al Doc. 39 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERTO HERRERA, CASE No. 1:12-cv-00982-AWI-MJS (PC) 11 Plaintiff, 12 FINDINGS AND RECOMMENDATIONS DENYING RECONSIDERATION OF ORDER DISMISSING ACTION WITH PREJUDICE AND JUDGMENT THEREON v. 13 14 NAREDDY, et al., (ECF No. 33) 15 Defendants. 16 / 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Roberto Herrera is a state prisoner proceeding pro se in this civil rights 20 action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff declined Magistrate 21 Judge jurisdiction. (Decline of Jurisdiction, ECF No. 5.) 22 Plaintiff's Complaint was dismissed, with leave to amend, for failure to state a 23 claim. (Order Dismiss. Compl., ECF No. 4.) Plaintiff filed a First Amended Complaint 24 on August 10, 2012. (First. Am. Compl., ECF No. 14). On August 31, 2012, the Court 25 issued findings and recommendations for dismissal of the action with prejudice for 26 failure to state a claim. (F&R re Dismiss., ECF No. 17.) On September 19, 2012, 27 Plaintiff timely filed objections to the findings and recommendations. (Obj. to F&R, ECF 28 -1Dockets.Justia.com 1 No. 19; Order Granting Ext. of Time for Obj., ECF No. 27.) The District Judge assigned 2 to this case issued an order adopting the findings and recommendations and dismissing 3 the action with prejudice on November 29, 2012 (Order Adopt F&R, ECF No. 31), and 4 judgment was entered thereon. (J. Dismiss., ECF No. 32.) Plaintiff filed, on December 6, 2012 a purported second motion opposing the 5 6 Magistrate’s recommendation to dismiss. (Sec. Obj. to F&R, ECF No. 33.) The Court 7 construes this as a request for reconsideration of the November 29, 2012.1 8 II. 9 LEGAL STANDARD Rule 60(b)(6) allows the Court to relieve a party from an order and judgment for 10 any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable 11 remedy to prevent manifest injustice and is to be utilized only where extraordinary 12 circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The 13 moving party “must demonstrate both injury and circumstances beyond his control . . . .” 14 Id. In seeking reconsideration of an order, Local Rule 230(j) requires a party to identify 15 the motion or order in issue and when it was made, and show “what new or different 16 facts or circumstances are claimed to exist which did not exist or were not shown upon 17 such prior motion, or what other grounds exist for the motion.” 18 “A motion for reconsideration should not be granted, absent highly unusual 19 circumstances, unless the . . . court is presented with newly discovered evidence, 20 committed clear error, or if there is an intervening change in the controlling law,” Marlyn 21 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), 22 and “[a] party seeking reconsideration must show more than a disagreement with the 23 [c]ourt's decision, and recapitulation . . .” of that which was already considered by the 24 court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 25 1131 (E.D. Cal. 2001). 26 27 28 1 Plaintiff has appealed the Court’s November 29, 2013 Order Dismissing Action and Judgment thereon. (Notice of Appeal, ECF No. 34.) The appeal is held in abeyance of resolution of the instant request for relief. (Order of U.S.C.A., ECF No. 38.) -2- 1 III. ARGUMENT Plaintiff argues he has made the same allegations of inadequate pain 2 3 management as were made in Herrera v. Wheeler, a civil rights action pending in the 4 Eastern District in which the Court found a cognizable Eighth Amendment medical 2 5 indifference claim. He argues that a California Department of Corrections and 6 Rehabilitation pain management policy prevents him from receiving adequate pain 7 medication. He argues that he is entitled to enjoin the pain management committee from 8 implementing that policy. (Sec. Obj. to F&R at 1:21-2:9.) 9 10 IV. ANALYSIS Plaintiff's purported second motion opposing the Magistrate’s recommendation to 11 dismiss the action, construed as a request for reconsideration of the November 29, 2012 12 order, is without merit and shall be denied. 13 This action, originally filed on June 19, 2012, was dismissed following a second 14 screening because Plaintiff failed to allege facts sufficient to claim that Defendants 15 intentionally denied, delayed or interfered with treatment, or intentionally offered 16 medically unacceptable treatment. (Order Adopt F&R at 2:18-20.) The Court previously 17 determined that Plaintiff had ongoing access to Defendant medical staff, each of whom 18 concurred in, and provided, a course of treatment; there was an absence of facts 19 suggesting disagreement among medical professionals as to the proper course of 20 treatment for Plaintiff; there were insufficient facts to suggest Plaintiff’s treatment was 21 otherwise medically unacceptable; and that any alleged mis-diagnosis suggested by 22 Plaintiff was at most negligence and, as such, insufficient to support an Eighth 23 Amendment violation. (Id. at 6:11-7:1.) The Court determined Plaintiff’s requested 24 injunctive relief to be similarly deficient. (Id. at 8:1-9:5.) 25 Plaintiff provides no basis for granting a motion for reconsideration. He cites to a 26 screening order in Wheeler, an unrelated, still pending district court action against non27 28 2 Plaintiff cites to Herrera v. W heeler, E.D. Cal. Case No. 2:10- cv-01280-GEB-DAD. -3- 1 party defendants, but provides no factual or legal basis for arguing error or newly 2 discovered evidence in this action, and the Court is aware of none. There is nothing to 3 suggest an identity of claims, a final judgment on the merits, and identity or privity 4 between parties necessary for application of res judicata and collateral estoppel. Rest.2d 5 Judgments § 17; see also Adams v. California Dep't of Health Servs., 487 F.3d 684, 6 688–89 (9th Cir.2007); Headwaters, Inc., v. U.S. Forest Serv., 399 F.3d 1047, 1052, 7 quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 8 1064, 1077 (9th Cir. 2003). 9 He argues for relief from a pain management policy imposed by a pain 10 management committee. However, such policy and committee are neither mentioned in 11 his First Amended Complaint nor before the Court in this action. He provides no other 12 grounds for reconsideration. 13 V. CONCLUSIONS AND RECOMMENDATION 14 Plaintiff has not met the burden imposed upon a party moving for reconsideration. 15 Marlyn Nutraceuticals, Inc., 571 F.3d at 880. He has not shown clear error or other 16 meritorious grounds for relief from the November 29, 2012 order adopting findings and 17 recommendations and dismissing this action with prejudice and judgment thereon. 18 Accordingly, it is RECOMMENDED that Plaintiff’s purported second motion 19 opposing the Magistrate’s recommendation to dismiss the action (Sec. Obj. to F&R, ECF 20 No. 33), construed as a request for reconsideration of the November 29, 2012 order 21 adopting findings and recommendations and dismissing the action with prejudice and 22 judgment thereon, be DENIED by the District Judge. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 25 Within fourteen (14) days after being served with these findings and recommendations, 26 any party may file written objections with the Court and serve a copy on all parties. 27 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 28 -4- 1 Recommendations.” Any reply to the objections shall be served and filed within ten (10) 2 days after service of the objections. The parties are advised that failure to file objections 3 within the specified time may waive the right to appeal the District Court's order. 4 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED. 7 Dated: ci4d6 8 December 21, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-
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