Garrett v. Ruiz et al, No. 3:2011cv02540 - Document 113 (S.D. Cal. 2013)
Court Description: ORDER denying Plaintiff's 111 Motion for Reconsideration re 97 Order on Motion for Summary Judgment. Plaintiff's Motion for Reconsideration of Court's Order Granting Defendant's Motion for Summary Judgment is denied pursuant to FRCP 59(e) and S.D. CIVLR 7.1(i)(1). Signed by Judge Irma E. Gonzalez on 6/9/2013. (All non-registered users served via U.S. Mail Service) (jah)
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Garrett v. Ruiz et al Doc. 113 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 WILLIAM ALLEN GARRETT, CDCR #AM-6925, Civil No. Plaintiff, 13 14 ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION PURSUANT TO FED.R.CIV.P. 59(e) AND S.D. CAL. CIVLR 7.1(i)(1) vs. 15 16 17 11cv2540 IEG (WVG) ANDRES RUIZ; BRANDON JORDAN; BRETT H. BURKETT; SAN DIEGO POLICE DEPARTMENT, [ECF Doc. No. 111] Defendants. 18 19 On April 15, 2013, Plaintiff filed a document entitled “Objection to Magistrate Ruling 20 Dismissing Plaintiff’s Claim and Request for Reconsideration” [ECF Doc. No. 111], which 21 the Court now construes as a Motion to Alter or Amend the Judgment pursuant to 22 FED.R.CIV.P. 59(e) and/or for reconsideration of that judgment pursuant to S.D. CAL. CIVLR 23 7.1(i). 24 I. 25 Procedural History On April 3, 2013, the Court granted Defendants’ Motion for Summary Judgment 26 pursuant to FED.R.CIV.P. 56(c), and directed the Clerk to enter a judgment in favor of 27 Defendants [ECF Doc. Nos. 97, 98]. Specifically, the Court found that while Plaintiff’s 28 claims of excessive force against Defendants Ruiz and Jordan were not barred by Heck v. 1 11cv2540 IEG (WVG) Dockets.Justia.com 1 Humphrey, 512 U.S. 477 (1994)’s “favorable termination” rule, see April 3, 2013 Order 2 [ECF Doc. No. 97] at 11, Ruiz and Jordan were nevertheless entitled to summary judgment 3 as to those claims because “no triable issues of fact exist[ed in the record] to support 4 Plaintiff’s claims that [their] use of force under the totality of the circumstances presented to 5 them was anything other than objectively reasonable.” Id. at 20 (citations omitted). The 6 Court further found Defendant Burkett was entitled to summary judgment as to Plaintiff’s 7 Fifth and Fourteenth Amendment claims, id. at 13, and that the City of San Diego (which 8 Plaintiff erroneously sued as the “San Diego Police Department”) was likewise entitled to 9 judgment as a matter of law because the record before the Court failed to show that any 10 constitutional violation occurred. Id. at 22. On April 15, 2013, Plaintiff filed both a Notice of Appeal to the Ninth Circuit Court 11 12 of Appeals, as well as this Motion for Reconsideration [ECF Doc. Nos. 107, 111].1 13 II. Plaintiff’s Motion Plaintiff now asks this Court to reconsider its April 3, 2013 judgment claiming, as he 14 15 did on several occasions prior to summary judgment, that Defendants “failed to produce 16 documents” he sought both before and after he was represented by counsel throughout the 17 course of discovery, and that these documents would have shown genuine issues of material 18 fact necessitating trial. See Pl.’s Mot. at 2-4. 19 /// 20 /// 21 /// 22 1 23 24 25 26 27 28 A Notice of Appeal filed before disposition of a Rule 59 motion does not divest the district court of jurisdiction to consider the motion. See FED.R.APP.P. 4(a)(4); Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988) (per curiam); Trinidad Corp. v. Maru, 781 F.2d 1360, 1361-62 (9th Cir. 1986). Indeed, a timely-filed Rule 59(e) motion is a “proper vehicle for seeking reconsideration of a summary judgment ruling.” Tripati, 845 F.2d at 206. “A motion 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(e). In this case, judgment was entered on April 3, 2013, and Plaintiff’s Motion was received by the Court on April 15, 2013, but his proof of service indicates he submitted for delivery via the prison mailroom at Salinas Valley State Prison on April 10, 2013. Therefore, under the prison “mailbox rule,” Plaintiff’s Motion is considered filed as of that date. See Pl.’s Mot. [ECF Doc. No. 111] at 6; Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice of appeal filed by a pro se prisoner is deemed to be “filed” when it is delivered to prison authorities for forwarding to the district court); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir. 1988) (Houston’s mailbox rule applies to Rule 59(e) motions). 2 11cv2540 IEG (WVG) 1 Specifically, Plaintiff again refers to “Pitchess” motions2 regarding Officer Ruiz 2 which were denied by the magistrate judge before he secured counsel, id. at 4; trial 3 transcripts of the testimony of two doctors and a criminologist who testified during his 4 criminal trial, id., and other unspecified “documents” which would have shown the City 5 “kn[ew] or should have known that Officer Ruiz had sadistic, malicious tendencies,” which 6 he claims were not produced in response to his attorney’s attempts to discover them. See 7 Pl.’s Mot. Ex. A “Plaintiff’s Request for Production of Documents,” signed by Daniel A. 8 Vespi, Attorney for Plaintiff William Garrett, on August 13, 2012. 9 In addition, Plaintiff also refers to Defendants’ Exhibits H and X–previously offered 10 in support of their Motion for Summary Judgment [ECF Doc. No. 65], which he claims 11 “clearly show[]” “genuine” disputes. Id. at 3. 12 A. Standard of Review 13 Motions for reconsideration filed pursuant to a Court’s Local Rules may be construed 14 as motions to alter or amend judgment under Federal Rule of Civil Procedure 59(e). 15 Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989). In Osterneck, the Supreme Court stated 16 that “a postjudgment motion will be considered a Rule 59(e) motion where it involves 17 ‘reconsideration of matters properly encompassed in a decision on the merits.’” 489 U.S. at 18 174 (quoting White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 (1982)). 19 “A motion for reconsideration under Rule 59(e) should not be granted, absent highly 20 unusual circumstances, unless the district court is presented with newly discovered evidence, 21 committed clear error, or if there is an intervening change in the controlling law.” 22 McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003) (internal citations and emphasis 23 omitted). This type of motion seeks “a substantive change of mind by the court.” Tripati v. 24 Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 25 709 F.2d 524, 526 (9th Cir. 1983)). Local Rule 7.1 similarly requires the party seeking 26 27 28 2 In Pitchess v. Superior Court, 11 Cal.3d 531, 537–38 (1974), the California Supreme Court held that, under certain circumstances, criminal defendants are entitled to discovery of information in a law enforcement officer’s personnel file that can assist their defense. Under California law, motions for discovery of police personnel files are generally referred to as Pitchess motions. 3 11cv2540 IEG (WVG) 1 reconsideration to set out in an affidavit “what new or different facts and circumstances are 2 claimed to exist which did not exist, or were not shown,” upon the prior application for relief. 3 S.D. CAL. CIVLR 7.1(i)(1). 4 Thus, under either FED.R.CIV.P. 59 or Local Rule 7.1, it is clear that “motions to 5 reconsider are not vehicles permitting the unsuccessful party to ‘rehash’ arguments 6 previously presented.” United States v. Navarro, 972 F. Supp. 1296, 1299 (E.D. Cal. 1997) 7 (rejecting “after thoughts” and “shifting of ground” as appropriate grounds for 8 reconsideration under FED.R.CIV.P. 59(e)). The district court may also decline to consider an 9 issue raised for the first time in a motion for reconsideration. Rosenfeld v. U.S. Dept. of 10 Justice, 57 F.3d 803, 811 (9th Cir. 1995). In fact, the Ninth Circuit has specifically 11 cautioned that a motion for reconsideration filed pursuant to Federal Rule of Civil Procedure 12 59(e) “may not be used to raise arguments or present evidence for the first time when they 13 could reasonably have been raised earlier in the litigation.” Kona Enterprises, Inc. v. Bishop, 14 229 F.3d 877, 890 (9th Cir. 2000); see also Beyah v. Murphy, 825 F. Supp. 213, 214 (E.D. 15 Wis. 1993) (Rule 59(e) “‘cannot be used to raise arguments which could, and should, have 16 been made before judgment issued.’”) (quoting FDIC v. Meyer, 781 F.2d 1260, 1268 (7th 17 Cir. 1986)). 18 B. 19 Plaintiff first seeks reconsideration of this Court’s April 3, 2013 Order granting 20 summary judgment for Defendants based on “arguments previously presented,” specifically, 21 Magistrate Judge Gallo’s denial of his “motions requesting funds for hiring experts,” and his 22 “numerous Pitchess Motions.” Pl.’s Mot. at 2; Navarro, 972 F. Supp. at 1299. 23 Plaintiff’s Arguments On February 10, 2012, Plaintiff filed an ex parte motion for investigative and expert 24 funds pursuant to Cal. Penal Code § 987.9 [ECF Doc. No. 14]. On February 10, 2012, 25 Magistrate Judge Gallo denied Plaintiff’s motion, noting that Cal. Penal Code 987.9, which 26 provides for the allocation of “[f]unds for investigators and experts for indigent defendants in 27 capital cases or in cases involving second degree murder following [a] prior prison term for 28 murder,” upon a state criminal trial counsel’s affidavit that such funds are “reasonable 4 11cv2540 IEG (WVG) 1 necessary for the preparation of presentation of the defense” at trial, was “wholly 2 inapplicable” to this civil action. See Feb. 10, 2012 Order [ECF Doc. No. 16] at 1-2. On 3 February 17, 2012, Plaintiff filed a Motion for Reconsideration of that decision, which 4 Magistrate Judge Gallo denied based on Plaintiff’s failure to offer any “new grounds” upon 5 which to grant Plaintiff relief. See Feb. 27, 2012 Order [ECF Doc. No. 22] at 1. Plaintiff’s 6 current request for reconsideration fares no better in that he points to no newly discovered 7 evidence, no clear error, and no intervening change in controlling law. McQuillion 342 F.3d 8 at 1014. Magistrate Judge Gallo denied Plaintiff’s “Pitchess” motion [ECF Doc. No. 21], as 9 10 well as his Motion to Compel related to the Pitchess motion [ECF Doc. No. 31], because 11 Plaintiff failed to meet and confer pursuant to S.D. CAL. CIVLR 26.1(a) and FED.R.CIV.P. 12 37(a)(1) and (3) prior to seeking court intervention. See April 18, 2012 Order [ECF Doc. No. 13 39] at 1-2. While Plaintiff claims that he is now, and was at the time, proceeding in pro se, 14 and thus, “ignorant of the rules of court,” Pl.’s Mot. at 2, Magistrate Judge Gallo’s February 15 27, 2012 Order noted that the Clerk of the Court had previously been directed to mail 16 Plaintiff a copy of the Court’s Civil Local Rules, see Feb. 27, 2012 Order at 2 (citing ECF 17 Doc. No. 17). Judge Gallo’s April 18, 2012 Order further set out the requirement that 18 Plaintiff meet and confer prior to seeking court intervention related to his discovery requests, 19 as well as the circumstances under which a motion to compel might eventually be justified. 20 Id. at 2 (citing FED.R.CIV.P. 37(a)(3)(B)(iii)). Thus, because Plaintiff has offered no new 21 evidence and pointed to no law suggesting how or why these decisions were improper, and 22 because even “[p]ro se litigants must follow the same rules of procedure that govern other 23 litigants,” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); Swimmer v. I.R.S., 811 F.2d 24 1343, 1344 (9th Cir. 1987) (“[i]gnorance of court rules does not constitute excusable neglect, 25 even if the litigant appears pro se.”) (citation omitted), this Court finds reconsideration of 26 Magistrate Judge Gallo’s February 10, 2012, February 27, 2012, and April 18, 2012 rulings 27 unwarranted. See United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) 28 /// 5 11cv2540 IEG (WVG) 1 (reconsideration is not to be used to simply ask the court to rethink what it has already 2 thought). 3 Plaintiff next seeks reconsideration based on claims that Defendants failed to provide 4 him with “trial transcripts” containing the testimonies of three doctors and a criminologist, 5 which would have “produce[d] genuine disputable facts” regarding the trajectory of the 6 bullet fired by Defendant Ruiz. (Pl.’s Mot. at 4.) Plaintiff made the same argument, seeking 7 the same discovery, on at least four separate occasions prior to summary judgment. See ECF 8 Doc. Nos. 42, 53, 76, 81. 9 On July 3, 2012, Magistrate Judge Gallo denied Plaintiff’s first motion to compel the 10 production of these transcripts on grounds that his request was moot because Defendants 11 “ha[d] already provided, or attempted to provide, Plaintiff with all ... requested discovery,” 12 and in fact, that Plaintiff “ha[d] received all the portions of his criminal trial transcript that 13 [they] ha[d] in their possession.” See July 3, 2012 Order [ECF Doc. No. 50] at 2. Plaintiff’s 14 subsequent motion to compel the same was denied for the same reasons again on July 30, 15 2012 [ECF Doc. No. 56 at 2-3]. 16 Plaintiff thereafter was represented by counsel, who on August 13, 2012, also served a 17 request for production of documents upon Defendants, which also included a demand for 18 “[t]he entirety of the trial transcript from Plaintiff’s criminal case that is in YOUR 19 possession.” See Pl.’s Mot. [ECF Doc. No. 111] at 9, Ex. A ¶ 4. 20 After Plaintiff’s counsel was permitted to withdraw on January 14, 2013, Plaintiff 21 filed a Motion for Injunctive Relief which again included a request that the Court issue an 22 Order compelling Defendants to produce the full jury trial transcript [ECF Doc. No. 76], 23 followed by a Motion for Order for Inspection and Production of Documents [ECF Doc. No. 24 81], repeating the same demand. Both these Motions were considered despite the fact that 25 they were filed “nearly six months” after the close of fact discovery, but were denied for 26 same reasons as before [ECF Doc. No. 96]. Plaintiff’s latest Motion simply requests the 27 production of the same discovery as has been denied, on grounds that it had already been 28 provided to Plaintiff, numerous times throughout the course of this litigation; yet he offers 6 11cv2540 IEG (WVG) 1 absolutely no new evidence, new law, or circumstances under which yet another 2 reconsideration is warranted. See Merozoite v. Thorp, 52 F.3d 252, 255 (9th Cir. 1995) (a 3 motion for reconsideration is not a vehicle permitting the unsuccessful party to reiterate 4 arguments previously presented); Navarro, 972 F. Supp. at 1299. 5 Next, Plaintiff seeks reconsideration because he alleges Defendants failed to provide 6 him with Defendant Ruiz’s “internal affairs documents” and “the documents sought show 7 genuine disputable facts of []sadistic and malicious tendencies of abuse under color of 8 authority.” Pl.’s Mot. [ECF Doc. No. 111] at 4. First, to the extent these documents may be 9 the same as those sought by Plaintiff by way of his Pitchess motion, his Motion is denied for 10 the reasons previously discussed. Second, like his requests for the production of his trial 11 transcripts, the Court finds reconsideration unwarranted because it again appears that 12 Plaintiff’s counsel of record propounded the production of “[a]ny and all DOCUMENTS 13 containing information regarding the employment history, criminal history, internal affairs 14 investigation, use of force (excessive or otherwise), and discipline of Defendant Ruiz,” on 15 August 13, 2012, while the discovery period remained open, id., at 9 ¶ 5, and because 16 Plaintiff was, indeed, provided with all the “applicable police reports, photographs, and 17 audio” he requested. See March 7, 2013 Order [ECF No. 87] at 5. 18 Finally, Plaintiff seeks reconsideration on grounds that Defendants’ Exhibits “H” and 19 “X,” “clearly show[] genuine disputed facts.” Pl.’s Mot. at 3, 13, 14. Specifically, Plaintiff 20 points to “Exhibit H,” an anatomical diagram of a male torso, marked with Plaintiff’s 21 Superior Court Criminal Case No SCD235343, and signed by “G. Wagner,” the County 22 Medical Examiner who testified at Plaintiff’s trial. This exhibit includes a line marked 23 “bullet trajectory” through the upper torso. The same diagram, showing both a frontal and 24 posterior view, was considered by the Court when it was offered by Defendants’ in support 25 of their Motion for Summary Judgment in this case [ECF Doc. No. 65-7 at 9-10], and 26 Wagner also attached it to his Declaration in support of Defendants’ Motion to corroborate 27 his testimony that the gunshot wound to Plaintiff’s right posterior neck and chest was 28 “consistent with a downward trajectory.” See Defs.’ Ex. E in Supp. of Mot. for Summ. J. 7 11cv2540 IEG (WVG) 1 [ECF Doc No. 65-7] ¶¶ 3, 4. The exhibit Plaintiff now attaches to his Motion for 2 Reconsideration marked as “Exhibit X” appears to be either a photocopy of one of the 3 photographs which was also previously offered in support of Defendant Ruiz’s Declaration in 4 support of summary judgment, or another similar photograph introduced during his criminal 5 trial depicting the interior courtyard area just outside the burglarized dentist’s office where he 6 was shot. Cf. Pl.’s Mot. [ECF Doc. No. 111] at 14 with Def. Ruiz’s Decl. [ECF Doc. No. 65- 7 3] at 5-6, Exs. 1, 2. While Plaintiff claims the anatomical drawings contradict Wagner’s testimony, and 8 9 the photograph “clearly shows genuine disputed facts” regarding the “blood splatter trail” 10 and its distance “away from the dentist office door,” Pl.’s Mot. at 3, he has still failed to 11 present the Court with any new evidence, law, or argument which not previously considered. 12 See FED.R.CIV.P. 59(e); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (finding no 13 abuse of discretion in district court’s denial of a motion to reconsider where the plaintiff did 14 not present any new evidence, make additional argument, or provide other reason to justify 15 reconsideration of an order granting summary judgment for the defendants.) Nor do these 16 exhibits establish summary judgment was based on a “manifest error of law or fact.” See 17 McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc). Thus, for all the reasons set forth above, Plaintiff’s Objection to Magistrate Ruling 18 19 Dismissing Plaintiff’s Claim and Request for Reconsideration [ECF Doc. No. 111] must be 20 denied, for neither Federal Rule of Civil Procedure 59(e) nor S.D. CAL. CIVLR 7.1 permit 21 reconsideration merely because Plaintiff is unhappy with the judgment, frustrated by the 22 Court’s application of the facts to binding precedent or because he disagrees with its ultimate 23 decision. See 11 Charles Alan Wright & Arthur R. Miller Federal Practice & Procedure 2d 24 § 2858 (Supp. 2007) (citing Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). 25 Without more, Plaintiff has failed to show the clear error Rule 59 requires and has failed to 26 identify intervening changes in controlling law which would justify a “substantive change of 27 mind.” McQuillion, 342 F.3d at 1014; Tripati, 845 F.2d at 206, n.1. 28 /// 8 11cv2540 IEG (WVG) 1 2 III. Conclusion and Order Accordingly, Plaintiff’s Motion for Reconsideration of the Court’s Order Granting 3 Defendants’ Motion for Summary Judgment FED.R.CIV.P. 56(c) [ECF Doc. No. 111] is 4 hereby DENIED pursuant to FED.R.CIV.P. 59(e) and S.D. CAL. CIVLR 7.1(i)(1). 5 IT IS SO ORDERED. 6 7 DATED: June 9, 2013 _________________________________________ HON. IRMA E. GONZALEZ United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 11cv2540 IEG (WVG)
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