(PC) Lipsey v. Reddy et al, No. 1:2017cv00569 - Document 79 (E.D. Cal. 2019)
Court Description: ORDER OVERRULING 76 Objections to Magistrate Judge's Findings and Recommendations; ORDER DENYING 77 Plaintiff's Motion Requesting Alteration or Amendment of the Judgment and/or Motion; and ORDER DENYIN 78 Plaintiff's Federal Rule of Civil Procedure 59 and 60(b) Motions signed by Chief Judge Lawrence J. O'Neill on 3/25/2019. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., 12 Plaintiff, 13 14 v. DR. REDDY, et al., 15 Defendants. 16 17 Case No. 1:17-cv-00569-LJO-BAM (PC) ORDER OVERRULING OBJECTIONS TO MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS (ECF No. 76) ORDER DENYING PLAINTIFF’S MOTION REQUESTING ALTERATION OR AMENDMENT OF THE JUDGMENT AND/OR MOTION (ECF No. 77) ORDER DENYING PLAINTIFF’S FEDERAL RULE OF CIVIL PROCEDURE 59 AND 60(b) MOTIONS (ECF No. 78) 18 19 20 Plaintiff Christopher Lipsey, Jr. is a state prisoner proceeding pro se and in forma pauperis 21 22 in this civil rights action pursuant to 42 U.S.C. § 1983. 23 I. Background 24 On February 7, 2019, the Magistrate Judge issued findings and recommendations that 25 Defendants’ motion for summary judgment based on Plaintiff’s failure to exhaust available 26 administrative remedies be granted. (ECF No. 73.) The findings and recommendations were 27 served on the parties and contained notice that any objections were to be filed within fourteen (14) 28 days after service. (Id. at 10.) 1 1 On March 6, 2019, the undersigned adopted the pending findings and recommendations 2 without objections from either party, granted Defendants’ motion for summary judgment, and 3 ordered that judgment be entered in favor of all Defendants. (ECF No. 74.) Judgment was entered 4 in favor of all Defendants against Plaintiff. (ECF No. 75). 5 However, also on March 6, 2019, but after the order adopting and the judgment were 6 docketed, Plaintiff filed objections to the findings and recommendations. (ECF No. 76.) While 7 Plaintiff’s objections to the findings and recommendations were not docketed until March 6, 2019, 8 the objections include a proof of service by mail dated February 14, 2019. Pursuant to the prison 9 mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner 10 delivered it to the prison authorities for mailing to the court clerk. See Houston v. Lack, 487 U.S. 11 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th Cir. 2009) (mailbox rule 12 articulated in Houston applies to civil rights actions). Therefore, Plaintiff’s objections to the 13 findings and recommendations were timely filed and are addressed below. 14 On March 18, 2019, Plaintiff filed a motion requesting to alter or amend the judgment 15 and/or a motion pursuant to Federal Rules of Civil Procedure 60(b). (ECF No. 77.) On March 22, 16 2019, Plaintiff filed a document titled “Federal Rule of Civil Procedure 59 and 60(b) Motions.” 17 (ECF No. 78.) Both of these motions are pending review and will also be addressed below. 18 II. Plaintiff’s Objections to Magistrate Judge’s Finding and Recommendations 19 In his objections to the Magistrate Judge’s February 7, 2019 findings and recommendations, 20 Plaintiff first argues that the Rand notice provided by Defendants at the time Defendants’ motion 21 for summary judgment was filed was insufficient because the notice failed to include a citation to 22 Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010) and a statement that, according to Thomas, 611 23 F.3d at 1150, a pro se inmate is not required to file affidavits, depositions, interrogatory answers, 24 or admissions to defeat a motion for summary judgment, but, instead, can defeat summary judgment 25 by submitting factual statements in the inmate’s opposition to the motion for summary judgment. 26 However, the Court finds Plaintiff’s first objection to be unpersuasive. Initially, the Rand 27 notice served on Plaintiff by Defendants is not insufficient simply because the notice failed to 28 include a citation to Thomas, 611 F.3d 1144. Further, since the Court finds no support in the 2 1 Thomas v. Ponder opinion for Plaintiff’s assertion that the Ninth Circuit articulated in Thomas that 2 a pro se inmate plaintiff can defeat summary judgment by submitting factual statements in the 3 inmate’s opposition to summary judgment, the Rand notice served on Plaintiff was not insufficient 4 because it failed to include Plaintiff’s proposed statement. 5 Second, Plaintiff argues that, since the Magistrate Judge did not mention Plaintiff’s affidavit 6 in the findings and recommendations, the Magistrate Judge erred by not treating Plaintiff’s 7 opposition as an affidavit to oppose Defendants’ motion for summary judgment. 8 The Court finds Plaintiff’s second objection is unpersuasive. Since the filings and motions 9 of a pro se inmate must be construed liberally, a verified opposition may be treated or considered 10 as an affidavit in opposition to summary judgment, but only to the extent that the inmate’s 11 statements in the opposition are based on personal knowledge and set forth specific facts admissible 12 in evidence. McElyea v. Babbitt, 833 F.2d 196, 197–98, 198 n.1 (9th Cir. 1987). In this case, while 13 it is true that the Magistrate Judge’s findings and recommendations failed to explicitly state that 14 Plaintiff’s opposition was being treated as an affidavit, the findings and recommendations clearly 15 demonstrate that the Magistrate Judge considered factual statements made by Plaintiff in his 16 opposition as evidence. The fact that the Magistrate Judge found that Plaintiff failed to create any 17 genuine issue of material fact that administrative remedies were effectively unavailable to Plaintiff 18 does not establish that the Magistrate Judge did not treat Plaintiff’s opposition as an affidavit. 19 Third, Plaintiff contends that the Magistrate Judge erred in recommending that the 20 undersigned grant Defendants’ motion for summary judgment because Plaintiff presented the Court 21 with evidence demonstrating that administrative remedies were effectively unavailable to him. 22 Specifically, Plaintiff argues that he provided the Court with evidence that he submitted 23 administrative appeals regarding the March 21, 2016 incident within 30 days of the incident and 24 more than 30 days after the incident, but that the appeals coordinators did not respond to his 25 administrative appeals regarding the March 21, 2016 incident until they rejected his July 5, 2016 26 appeal as untimely. (ECF No. 76, at 6, 10–11.) 27 The Court finds Plaintiff’s third objection to be unpersuasive. In his opposition, Plaintiff 28 alleges he filed his first administrative appeal challenging the March 21, 2016 incident on 3 1 approximately April 15, 2016 by sending the appeal to the Corcoran SHU appeal coordinators 2 through “the Department of State Hospital at Stockton,” which the Court interprets as a reference 3 to California Health Care Facility, Stockton. (ECF No. 58, at 2, 13, 16–18.) Plaintiff further asserts 4 that, after he did not receive an inmate assignment notice for his April 2016 appeal, he filed four 5 more appeals challenging the March 21, 2016 incident, one in May, two in June, and one on July 6 5, 2016. Plaintiff states that he did not receive any response to his administrative appeals until the 7 appeals coordinators cancelled his July 5, 2016 appeal as untimely. (ECF No. 58, at 2, 3, 6, 13, 8 16–17.) 9 However, even viewing this evidence in the light most favorable to Plaintiff, Plaintiff has 10 not shown that the appeals coordinators’ failure to process his April, May, and June 2016 appeals 11 rendered the prison grievance process “effectively unavailable” to Plaintiff. Albino v. Baca, 747 12 F.3d 1162, 1172 (9th Cir. 2014). After his June 2016 appeal was not processed, Plaintiff filed his 13 July 5, 2016 appeal regarding the March 21, 2016 incident. The undisputed evidence shows that 14 the appeals coordinators processed Plaintiff’s July 5, 2016 appeal by screening out and cancelling 15 the appeal as untimely. The undisputed evidence also shows that, while Plaintiff resubmitted his 16 cancelled July 5, 2016 appeal several times, Plaintiff failed to file a separate appeal challenging the 17 cancellation of his July 5, 2016 appeal, as he was instructed he could do by the institution in several 18 letters. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust ‘available’ 19 remedies persists as long as some remedy remains ‘available.’”); see Cal. Code Regs. tit. 15, 20 § 3084.6(a)(3), (e) (inmate can appeal cancellation decision separately). Nothing before the Court 21 suggests that, if Plaintiff had filed a separate cancellation appeal contending that his July 5, 2016 22 appeal was improperly cancelled as untimely because he had previously filed appeals challenging 23 the March 21, 2016 incident in April, May, and June 2016 that were not processed, the appeals 24 coordinators or third level would not have granted Plaintiff’s cancellation appeal and permit 25 Plaintiff to resubmit his July 5, 2016 appeal. Therefore, while the appeals coordinators’ failure to 26 process Plaintiff’s April, May, and June 2016 appeals may have frustrated Plaintiff, unlike the 27 plaintiff in Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017), Plaintiff was not, in fact, prevented 28 from pursuing his administrative remedies. It was Plaintiff’s decision to not file a separate appeal 4 Consequently, Plaintiff’s evidence 1 challenging the cancellation of his July 5, 2016 appeal. 2 regarding his April, May, and June 2016 appeals fails to create any genuine issue of material fact 3 about Plaintiff’s failure to exhaust his available administrative remedies. 4 Finally, the remainder of Plaintiff’s objections merely reiterate arguments made in his 5 opposition to the motion for summary judgment, which were fully addressed in the Magistrate 6 Judge’s findings and recommendations. Therefore, Plaintiff’s objections to the Magistrate Judge’s February 7, 2019 findings and 7 8 recommendations, (ECF No. 76), are overruled. 9 III. Plaintiff’s Motions for Reconsideration 10 On March 18, 2019, Plaintiff filed a motion requesting to alter or amend the judgment 11 and/or a motion pursuant to Federal Rules of Civil Procedure 60(b). (ECF No. 77.) On March 22, 12 2019, Plaintiff filed a document titled “Federal Rule of Civil Procedure 59 and 60(b) Motions.” 13 (ECF No. 78.) The Court interprets both of Plaintiff’s motions as motions for reconsideration of 14 the Court’s March 6, 2019 order adopting the Magistrate Judge’s February 7, 2019 findings and 15 recommendations and granting Defendants’ motion for summary judgment. 16 “A motion for reconsideration of summary judgment is appropriately brought under either 17 Rule 59(e) or Rule 60(b).” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1129 18 (E.D. Cal. 2001) (internal quotation marks and citation omitted). Regardless of whether the motion 19 for reconsideration is brought under Rule 59(e) or Rule 60(b), “[a] motion for reconsideration is 20 not a vehicle to reargue the motion or to present evidence which should have been raised before.” 21 Westlands Water Dist., 134 F. Supp. 2d at 1131 (internal quotation marks and citation omitted). 22 Therefore, “[a] party seeking reconsideration must show more than a disagreement with the Court’s 23 decision, and recapitulation of the cases and arguments considered by the [C]ourt before rendering 24 its original decision fails to carry the moving party’s burden.” Id. (internal quotation marks and 25 citation omitted). Consequently, “[a] motion for reconsideration should not be granted, absent 26 highly unusual circumstances, unless the district court is presented with newly discovered evidence, 27 committed clear error, or if there is an intervening change in the controlling law.” Marlyn 28 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal 5 1 quotation marks and citation omitted). Additionally, Local Rule 230(j) requires that, when a party 2 makes a motion for reconsideration, the party must show “what new or different facts or 3 circumstances are claimed to exist or were not shown upon such prior motion, or what other grounds 4 exist for the motion” and “why the facts and circumstances were not shown at the time of the prior 5 motion.” Plaintiff’s March 18, 2019 Motion for Reconsideration 6 A. 7 In his March 18, 2019 motion, Plaintiff contends that the Court should reconsider its March 8 6, 2019 order adopting the findings and recommendations and granting Defendants’ motion for 9 summary judgment because he did not have a pen to timely prepare his objections, he has provided 10 the Court with new evidence supporting his claim that the administrative appeal process was 11 effectively unavailable to him, and the evidence previously submitted to the Court shows that the 12 administrative appeal process was effectively unavailable to him. (ECF No. 77.) 13 First, Plaintiff’s request for reconsideration based on the fact that his objections were 14 untimely because he did not have constant possession of a pen is moot because the Court previously 15 determined that Plaintiff’s objections were timely filed and already considered the objections on 16 their merits. Second, Plaintiff argues that the Court should reconsider the order granting summary 17 judgment because he has provided the Court with new evidence demonstrating that appeals 18 coordinators have a custom and habit to refuse to process properly filed administrative appeals and 19 deny ever receiving the appeal so that inmates cannot exhaust the prison grievance process. 20 However, evidence demonstrating that appeals coordinators at Kern Valley State Prison have 21 denied receiving administrative appeals that Plaintiff asserts that he filed in 2018 does not create 22 any genuine issue of material fact regarding whether California State Prison, Corcoran appeals 23 coordinators’ failure to process the April, May, and June 2016 appeals that Plaintiff contends that 24 he filed regarding the March 21, 2016 incident rendered the prison grievance process “effectively 25 unavailable” to Plaintiff in 2016. 26 Third, while Plaintiff argues that evidence previously submitted to the Court shows that the 27 administrative appeal process was effectively unavailable to him, reconsideration is not appropriate 28 when the moving party relies on arguments previously raised or evidence previously submitted to 6 1 the Court. In re Benham, No. CV13-00205-VBF, 2013 WL 3872185, at *9 (C.D. Cal. May 29, 2 2013) (“[A] motion for reconsideration cannot be used to ask the Court to rethink what the Court 3 has already thought through merely because a party disagrees with the Court’s decision.”) (internal 4 quotation marks and citation omitted). As discussed above, the Court has already addressed 5 Plaintiff’s argument that his earlier appeals were ignored, and he has presented no new grounds to 6 reconsider this assessment. 7 Therefore, since Plaintiff has failed to present the Court with newly discovered evidence, 8 demonstrate that the Court committed clear error, establish that there has been an intervening 9 change in the controlling law, or establish that a manifest injustice may occur as a result of the 10 Court’s March 6, 2019 order adopting the Magistrate Judge’s February 7, 2019 findings and 11 recommendations and the resulting March 6, 2019 judgment, Plaintiff’s March 18, 2019 motion for 12 reconsideration, (ECF No. 77), is denied. Plaintiff’s March 22, 2019 Motion for Reconsideration 13 B. 14 In his March 22, 2019 motion, Plaintiff contends that the Court should reconsider its March 15 6, 2019 order adopting the findings and recommendations and granting Defendants’ motion for 16 summary judgment because the Court improperly dismissed the instant case with prejudice, he has 17 provided the Court with new arguments and evidence supporting his claim that the administrative 18 appeal process was effectively unavailable to him, and the evidence previously submitted to the 19 Court shows that the administrative appeal process was effectively unavailable to him. 20 However, first, Plaintiff’s assertion that the Court dismissed the instant case with prejudice 21 is incorrect. Here, after finding that Defendants met their burden of establishing that Plaintiff did 22 not exhaust the available administrative remedies applicable to his excessive force claim and that 23 Plaintiff failed to produce evidence establishing a genuine issue of material fact that remedies were 24 unavailable in this case, the Court granted Defendants’ motion for summary judgment and properly 25 dismissed the instant action without prejudice. See City of Oakland v. Hotels.com LP, 572 F.3d 26 958, 962 (9th Cir. 2009). 27 Second, Plaintiff argues that the Court should reconsider the order granting summary 28 judgment because he did not file a motion compelling answers to the discovery requests that he 7 1 served on Defendants, because this case is very similar to Rayford v. Medina, “case no. 14-cv- 2 01318-VC (2015)” and so this Court should issue the same ruling as the Rayford court, and because 3 he has now presented the Court with exact copies of the separate CDCR 602 appeal forms 4 challenging the cancellation of his July 5, 2016 appeal. However, a motion for reconsideration 5 “may not be used to raise arguments or present evidence for the first time when they could 6 reasonably have been raised earlier in the litigation.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th 7 Cir. 2003). Therefore, since Plaintiff has failed to explain why he could not have raised his new 8 arguments or provided the Court with his new evidence earlier in the litigation, the Court concludes 9 that Plaintiff’s new arguments and evidence are not proper grounds for a motion for 10 reconsideration. 11 Third, Plaintiff again argues that evidence previously submitted to the Court shows that the 12 administrative appeal process was effectively unavailable to him, and these arguments were fully 13 addressed in the Court’s ruling on Plaintiff’s objections. As discussed above, reconsideration is 14 not appropriate when the moving party relies on arguments previously raised or evidence 15 previously submitted to the Court,. See Benham, 2013 WL 3872185, at *9. 16 Consequently, since Plaintiff has failed to present the Court with newly discovered 17 evidence, demonstrate that the Court committed clear error, establish that there has been an 18 intervening change in the controlling law, or establish that a manifest injustice may occur as a result 19 of the Court’s March 6, 2019 order adopting the Magistrate Judge’s February 7, 2019 findings and 20 recommendations and the resulting March 6, 2019 judgment, Plaintiff’s March 22, 2019 motion for 21 reconsideration, (ECF No. 78), is denied. 22 IV. Conclusion and Order 23 Based on the foregoing, IT IS HEREBY ORDERED that: 24 1. 25 recommendations, (ECF No. 76), are OVERRULED; 26 2. 27 28 Plaintiff’s objections to the Magistrate Judge’s February 7, 2019 findings and Plaintiff’s motion requesting to alter or amend the judgment and/or motion pursuant to Federal Rules of Civil Procedure 60(b), (ECF No. 77), is DENIED; /// 8 1 3. 2 3 Plaintiff’s “Federal Rule of Civil Procedure 59 and 60(b) Motions,” (ECF No. 78), is DENIED; and 4. This case remains closed. 4 5 6 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ March 25, 2019 UNITED STATES CHIEF DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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