-BGS Moody v. Unknown, No. 3:2009cv00892 - Document 58 (S.D. Cal. 2010)
Court Description: ORDER Denying In Part and Granting in Part Plaintiff's 43 Motion to Alter, Amend or Vacate Judgment and Granting Extension of Time to Re-Attempt U.S. Marshal Service Upon Defendant Manoram Reddy Pursuant to Fed.R.Civ.P. 4(m): Plaintiff shall c omplete the new USM Marshal Form 285 provided to him, and shall return it to the United States Marshal, along with all the necessary materials described in the Clerk's letter accompanying his IFP package, no later than July 9, 2010. Signed by Judge Larry Alan Burns on 6/9/10. (All non-registered users served via U.S. Mail Service, IFP package sent )(pdc)
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-BGS Moody v. Unknown Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 FLOYD MOODY, CDCR #G-26035, Civil No. Plaintiff, 13 ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF’S MOTION TO ALTER, AMEND OR VACATE JUDGMENT AND GRANTING EXTENSION OF TIME TO RE-ATTEMPT U.S. MARSHAL SERVICE UPON DEFENDANT MANORAM REDDY PURSUANT TO F ED.R.C IV.P. 4(m) 14 15 16 17 18 09-0892 LAB (BGS) vs. PAULETTE FINANDER, Chief Medical Officer; K. BALL, Chief Medical Officer; RICHARD BUTCHER, MD; and MANORAM REDDY, Medical Care Provider, 19 [Doc. No. 43] Defendants. 20 21 22 Currently before the Court is Plaintiff’s “Motion to Alter or Vacate or Amend Judgment 23 [F ED.R.C IV.P. 59]” [Doc. No. 43] in which he seeks reconsideration of the Court’s April 2, 2010 24 Order [Doc. No. 38]. 25 I. Procedural Background 26 The Court’s April 2, 2010 Order: 1) dismissed unserved Defendant Manoram Reddy on 27 grounds that Plaintiff had failed to effect service upon her pursuant to F ED.R.C IV.P. 4(m), (April 28 2, 2010 Order at 4-5, 20); 2) denied Defendant Finander, Ball and Butcher’s Motions to Dismiss K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 1 09cv0892 Dockets.Justia.com 1 Plaintiff’s Eighth Amendment inadequate medical care claims pursuant to F ED.R.C IV.P. 2 12(b)(6), (id. at 7-11, 20); 3) granted Defendant Finander, Ball and Butcher’s Motions to 3 Dismiss Plaintiff’s conspiracy claims without leave to amend pursuant to F ED.R.C IV.P. 12(b)(6), 4 (id. at 11-12 & n.2, 21); 4) denied Plaintiff’s Motions for Appointment of Counsel, Preliminary 5 Injunction and Leave to Amend, (id. at 17-19, 21); 5) granted Plaintiff’s Motion Requesting 6 Verification of Fee Payment, (id. at 20, 21); and 6) ordered Defendants Finander, Ball and 7 Butcher to Answer the Eighth Amendment claims remaining in Plaintiff’s Amended Complaint.1 8 (Id. at 21.) 9 II. Plaintiff’s Motion 10 A. 11 Plaintiff seeks reconsideration pursuant to Rule 59 of the Federal Rules of Civil 12 Procedure on grounds that he should have been permitted: 1) an opportunity to present and 13 produce evidence before the Court dismissed his conspiracy claims, (see Pl.’s Mot. [Doc. No. 14 43] at 3-4); 2) leave to file a supplemental complaint pursuant to F ED.R.C IV.P. 15(d) in order to 15 address “ongoing” and subsequent constitutional violations arising at Salinas Valley State Prison 16 since he initiated this action, (see Pl.’s Mem. or P&As in Supp. of Mot. [Doc. No. 43-1] at 1-2); 17 and 3) an extension of time in which to attempt “re-service” of his Amended Complaint upon 18 Defendant Reddy. (See Pl.’s Mot. at 1, 3; Pl.’s P&A’s at 3.)2 Grounds 19 Plaintiff’s Motion was filed without proof of service by mail on any Defendant or counsel 20 for any Defendant. See F ED.R.C IV.P. 5(a)(1)(D) (requiring “written motion[s], except one that 21 may be heard ex parte” be “served on every party.”), F ED.R.C IV.P. 5(d)(1) (“Any paper after the 22 23 24 1 On April 15, 2010, Defendants Finander, Ball and Butcher filed their Answers [Doc. Nos. 39, 40]. 2 25 26 27 28 Plaintiff also acknowledges that the Court’s April 2, 2010 Order verifying his satisfaction of the $350 filing fee required by 28 U.S.C. § 1914(a) was “just,” but further requests that this Court “address the erroneous deduction” of $44 from his prison trust account. (See Pl.’s Mot. at 3.) The Court has already verified, however, that it has not collected any fees which “exceed the amount of fees permitted by the statute for the commencement of [this] civil action.” 28 U.S.C. § 1915(b)(4). Any further inquiry Plaintiff may wish to pursue regarding a Salinas Valley State Prison trust account “decision, action, condition or policy” must be addressed through the California Department of Corrections and Rehabilitation’s inmate/parolee administrative appeal procedure. See CAL. CODE REGS., tit. 15 § 3084.1(a) (2009). K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 2 09cv0892 1 complaint that is required to be served–together with a certificate of service–must be filed within 2 a reasonable time after service.”). Perhaps consequently, no Defendant has filed an Opposition. 3 B. 4 If a motion to reconsider is filed within [28] days of the district court’s order on the 5 motion to strike and/or dismiss, the court will treat the motion as a Rule 59(e) motion.3 Zamani 6 v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Circuit City Stores, Inc. v. Mantor, 417 F.3d 7 1060, 1064 (9th Cir. 2005)). A Rule 59(e) motion is properly granted “if the district court (1) 8 is presented with newly discovered evidence, (2) committed clear error or the initial decision was 9 manifestly unjust, or (3) if there is an intervening change in controlling law.” Dixon v. Wallowa 10 Standard of Review County, 336 F.3d 1013, 1022 (9th Cir. 2003). 11 “A motion for reconsideration under Rule 59(e) should not be granted, absent highly 12 unusual circumstances.” McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003). This type 13 of motion seeks “a substantive change of mind by the court.” Tripati v. Henman, 845 F.2d 205, 14 206 n.1 (9th Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 15 1983)). Most significantly in relation to Plaintiff’s case, “motions to reconsider are not vehicles 16 permitting the unsuccessful party to ‘rehash’ arguments previously presented.” United States 17 v. Navarro, 972 F. Supp. 1296, 1299 (E.D. Cal. 1997) (rejecting “after thoughts” and “shifting 18 of ground” as appropriate grounds for reconsideration under F ED.R.C IV.P. 59(e)). 19 C. 20 Plaintiff first asks the Court to reconsider the dismissal of his conspiracy claims without 21 leave to amend against Defendants Finander, Ball and Butcher on grounds that he should be 22 permitted an “opportunity to present evidence” which would “remove doubt” that a conspiracy 23 “did, in fact, exist.” (Pl.’s Mot. at 2.) 24 /// Application to Plaintiff’s Case 25 26 27 28 3 Effective December 1, 2009, FED .R.CIV .P. 59(b) and 59(e) provide that the time for filing a motion for new trial or to alter or amend a judgment must be filed “no later than 28 days after the entry of the judgment.” FED .R.CIV .P. 59(b), (e). Before December 1, 2009, the time limit was 10 days. See SLR Partners, LLC v. B. Braun Medical Inc., 2010 WL 330088 at *2 n.2 (S.D. Cal. 2010) (unpub.) (“Effective December 1, 2009, Federal Rule of Civil Procedure 59(e) gives parties 28 days to file a motion to alter or amend a judgment.”). K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 3 09cv0892 1 As discussed in the Court’s April 2, 2010 Order, however, a Motion to Dismiss brought 2 pursuant to F ED.R.C IV.P. 12(b)(6) determines simply whether the complaint contains enough 3 factual content “to raise a reasonable expectation that discovery will reveal evidence” of the 4 claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The Court found that the vague 5 Plaintiff’s vague and conclusory allegations of conspiracy failed to meet this plausibility 6 standard, and that to the extent they amounted to mere speculation, amending them would be 7 futile. See April 2, 2010 Order at 11-12 & n.2. Plaintiff has not shown how the Court’s 8 conclusion was “clear error” or “manifestly unjust.” Dixon, 336 F.3d at 1022. 9 Second, Plaintiff seeks reconsideration of the Court’s denial of injunctive relief related 10 to “ongoing” incidents at Salinas Valley State Prison (“SVSP”) and leave to supplement his 11 pleading with new constitutional violations arising at SVSP subsequent to the initiation of this 12 action. See Pl.’s Mot. at 2-3; P&A’s at 1-3. In its April 2, 2010 Order, the Court denied 13 Plaintiff’s Motion for injunctive relief because it lacked jurisdiction over the parties Plaintiff 14 sought to enjoin. See April 2, 2010 Order at 18-19. The Court further denied Plaintiff’s Motion 15 for Leave to file a Supplemental Complaint adding new inadequate medical care and due process 16 claims against SVSP officials pursuant to F ED.R.C IV.P. 15(d) because alleging those claims in 17 this case would violate 42 U.S.C. § 1997e(a)’s pre-suit administrative exhaustion requirement. 18 Id. at 19 (citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); Vaden v. Summerhill, 19 449 F.3d 1047, 1051 (9th Cir. 2006)). Plaintiff’s current Motion does not address either of these 20 conclusions; instead it seeks reconsideration because these new claims are “closely connected,” 21 “ongoing” and now left “unchecked.” (See Pl.’s P&A’s at 1-2.) These arguments, however, do 22 not justify relief under Rule 59(e) because they do not show “clear error” and instead merely 23 “rehash arguments previously presented.” 24 Supp. at 1299. McQuillion, 342 F.3d at 1014; Navarro, 972 F. 25 Federal Rule of Civil Procedure 59(e) does not permit reconsideration merely because 26 Plaintiff is unhappy with the judgment, frustrated by the Court’s application of the facts to 27 binding precedent or because he disagrees with the ultimate decision. See 11 Charles Alan 28 Wright & Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2009) (citing K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 4 09cv0892 1 Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Accordingly, Plaintiff’s Motion 2 to Alter/Amend or Vacate its April 2, 2010 Order must be denied. See F ED.R.C IV.P. 59(e). 3 However, the Court does find good cause to extend the time in which Plaintiff may re- 4 attempt service of his Amended Complaint and summons upon Defendant Reddy pursuant to 5 F ED.R.C IV.P. 4(m). 6 7 8 9 Rule 4 of the Federal Rules of Civil Procedure provides that: If a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But is the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 10 11 F ED.R.C IV.P. 4(m). 12 In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the 13 court, shall serve the summons and the complaint. F ED.R.C IV.P. 4(c)(3); 28 U.S.C. § 1915(d) 14 (in IFP proceedings, “[t]he officers of the court shall issue and serve all process, and perform all 15 duties in such cases.”). “‘[A]n incarcerated pro se plaintiff proceeding in forma pauperis is 16 entitled to rely on the U.S. Marshal for service of the summons and complaint.’” Walker v. 17 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett, 912 F.2d at 275), abrogated on other 18 grounds by Sandin v. Conner, 515 U.S. 472 (1995). 19 A marshal’s or court clerk’s delays or errors constitute “good cause” to avoid dismissal 20 under F ED.R.C IV.P. 4(m). Puett, 912 F.2d at 273. Therefore, “[s]o long as the prisoner has 21 furnished the information necessary to identify the defendant, the marshal’s failure to effect 22 service is ‘automatically good cause’” for extending the time for service. Walker, 14 F.3d at 23 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). In fact, the Court 24 enjoys broad discretion under Rule 4(m) to extend time for service even without a showing of 25 good cause. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001); Mann v. American Airlines, 324 26 F.3d 1088, 1090 (9th Cir. 2003) (holding that district court may, under the broad discretion 27 granted by F ED.R.C IV.P. 4(m), extend time for service retroactively after the 120-day service 28 period has expired). K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 5 09cv0892 1 However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 2 information to effect service of the summons and complaint, the court’s sua sponte dismissal of 3 the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22; see also Rochon v. Dawson, 4 828 F.2d 1107, 1110 (5th Cir. 1987) (noting that plaintiff “may not remain silent and do nothing 5 to effectuate such service”; rather, “[a]t a minimum, a plaintiff should request service upon the 6 appropriate defendant and attempt to remedy any apparent defects of which [he] has 7 knowledge.”). 8 In its April 2, 2010 Order, the Court found that because Plaintiff had failed to execute 9 service via the U.S. Marshal upon Defendant Reddy within the 120 days permitted by 10 F ED.R.C IV.P. 4(m), and had not requested an extension of time in which to either locate or re- 11 attempt service upon Reddy after the summons was returned unexecuted on August 12, 2009, 12 dismissal of Reddy was appropriate. Walker, 14 F.3d at 1421-22; Rochon, 828 F.2d at 1110. 13 In his Motion, however, Plaintiff now asks that service be “re-issued” upon Reddy because he 14 was unaware of the service failure and “was under the impression that there would be a specific 15 phase appointed ... to call to mandate [any] [de]fects.” (Pl.’s Mot. at 3.) 16 Thus, because Plaintiff’s Eighth Amendment claims against Defendant Reddy are 17 substantially similar to those alleged and found sufficient to survive Defendant Finander, Ball 18 and Butcher’s Motions to Dismiss, (Amend. Compl. at 2, 6; Pl.’s Attach. to Amend. Compl. at 19 10-12), the Court finds good cause to re-issue the materials necessary to re-attempt service upon 20 Reddy, and to grant Plaintiff an extension of time pursuant to F ED.R.C IV.P. 4(m) within which 21 to do so. See In re Sheehan, 253 F.3d at 513; Mann, 324 F.3d at 1090. 22 III. Conclusion and Order 23 For the reasons set forth above, the Court hereby: 24 1) DENIES in part and GRANTS in part Plaintiff’s Motion to Alter, Amend or Vacate 25 the Court’s April 2, 2010 Order pursuant to F ED.R.C IV.P. 59(e) [Doc. No. 43]. Plaintiff’s 26 Motion is GRANTED only to the extent it includes a request for an extension of time in which 27 to re-attempt service upon Defendant Reddy. 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 6 09cv0892 1 2) DIRECTS the Clerk of Court to provide Plaintiff with an additional “IFP Package” 2 consisting of: (a) two certified copies of this Order; (b) two certified copy of the Court’s July 3 17, 2009 Order Granting IFP and Directing U.S. Marshal Service of Plaintiff’s First Amended 4 Complaint [Doc. No. 10]; (c) two certified copies of the First Amended Complaint and its 5 Attachment [Doc. Nos. 4, 4-1]; (d) an embossed alias summons on Plaintiff’s First Amended 6 Complaint (and one copy); and (e) one blank USM Form 285 for purposes of re-attempting 7 service as to Defendant Manoram Reddy. 8 2) GRANTS Plaintiff an extension of time to effect service upon Defendant Reddy 9 pursuant to F ED.R.C IV.P. 4(m). Plaintiff shall complete, as accurately and clearly as possible, 10 the new USM Marshal Form 285 provided to him, and shall return it to the United States 11 Marshal, along with all the necessary materials described in the Clerk’s letter accompanying his 12 IFP package, no later than July 9, 2010. 13 3) IT IS FURTHER ORDERED that pursuant to F ED.R.C IV.P. 4(c)(3), (m) and 28 14 U.S.C. § 1915(d), the U.S. Marshal shall, within 30 days of receiving Plaintiff’s new USM Form 15 285, re-attempt service of Plaintiff’s Amended Complaint and summons upon Defendant Reddy 16 as directed by Plaintiff. All costs of service shall be advanced by the United States pursuant to 17 the Court’s July 17, 2009 Order granting Plaintiff leave to proceed IFP and directing service 18 pursuant to 28 U.S.C. § 1915(d) and F ED.R.C IV.P. 4(c)(3). 19 IT IS SO ORDERED. 20 21 DATED: June 9, 2010 22 23 H ONORABLE L ARRY A LAN B URNS United States District Judge 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\09cv0892-rec-MTD-59(e).wpd 7 09cv0892
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