Beltran-Ojeda v. Unknown Parties et al
Filing
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ORDER that the reference to the Magistrate Judge is withdrawn as to Plaintiff's 35 Motion for Reconsideration and the motion is denied. Signed by Judge David G Campbell on 3/18/2014.(LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Saul Beltran-Ojeda,
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Plaintiff,
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vs.
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John Doe, et al.,
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Defendants.
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No. CV 12-1287-PHX-DGC (MEA)
ORDER
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Plaintiff Saul Beltran-Ojeda brought this civil rights action under 42 U.S.C. § 1983
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against Maricopa County Sheriff Joseph Arpaio and Dr. Richard Friedman (Doc. 10). On
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November 18, 2013, the Court entered an Order granting in part and denying in part
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Defendants’ Motion to Dismiss and dismissed Arpaio as a Defendant (Doc. 29). Before the
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Court is Plaintiff’s Motion for Reconsideration of part of that Order (Doc. 35). The Court
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did not order a response to the motion. See LRCiv 7.2(g)(2). The Court will deny Plaintiff’s
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motion.
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I.
Background
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In Count I of his Second Amended Complaint, Plaintiff alleged that Arpaio was
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deliberately indifferent to unsafe conditions of confinement and, as a result, Plaintiff
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contracted hepatitis C (Doc. 10 at 3). In Count II, Plaintiff alleged that Dr. Friedman failed
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to treat Plaintiff’s hepatitis C symptoms (id. at 4).
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Defendants moved to dismiss Plaintiff’s claims on the ground that he failed to
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properly exhaust administrative remedies as required under the Prison Litigation Reform Act,
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42 U.S.C. § 1997e(a) (Doc. 24). The Court found there was no evidence that Plaintiff filed
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a grievance related to his claim in Count I and dismissed that Count (Doc. 29 at 8). But the
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evidence showed that Plaintiff grieved his claim in Count II and, thereafter, remedies were
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effectively unavailable for him to complete his appeal (id. at 9). Thus, the Court denied the
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motion as to Count II.
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In his Motion for Reconsideration, Plaintiff seeks reconsideration of the prior ruling
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as to Count I and asks the Court to consider evidence attached to his motion (Doc. 35 at 1).
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He asserts that the attached documents support that Correctional Health Services (CHS)—the
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jail medical provider—and its employees require inmates to pay for their own medical
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records and then provide incomplete records or delay providing records (id. at 2-3; Doc. 35-2
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at 8). Plaintiff further asserts that his evidence shows CHS lost some of his medical
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documents, failed to respond properly to his medical needs, and failed to provide him test
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results (Doc. 35 at 2-3; Doc. 35-1 at 7; Doc. 35-3 at 8-9). According to Plaintiff, some of his
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grievance documents were destroyed by jail officers or withheld by Defendants during
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briefing on the Motion to Dismiss (Doc. 35-2 at 9-10). Lastly, Plaintiff maintains that his
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evidence shows that CHS and Dr. Friedman did nothing to improve his condition (Doc. 35-4
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at 12).
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II.
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Applicable Standard
Motions for reconsideration should be granted only in rare circumstances. Defenders
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of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995).
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reconsideration is appropriate where the district court “(1) is presented with newly
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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust,
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or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah
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County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Mere disagreement with a
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previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp.,
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689 F. Supp. 1572, 1573 (D. Haw. 1988). A motion for reconsideration “may not be used
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to raise arguments or present evidence for the first time when they could reasonably have
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A motion for
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been raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877,
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890 (9th Cir. 2000). Nor may a motion for reconsideration repeat any argument previously
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made in support of or in opposition to a motion. Motorola, Inc. v. J.B. Rodgers Mech.
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Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003).
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III.
Discussion
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A motion for reconsideration must be filed within 14 days of the date of the Order that
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is the subject of the motion. LRCiv 7.2(g)(2). Plaintiff filed his Motion for Reconsideration
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approximately 2 months after the Court entered its Order on Defendants’ Motion to Dismiss
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(Doc. 29 (Order dated Nov. 18, 2013); Doc. 35 (Mtn. filed Jan. 17, 2014)). Accordingly,
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Plaintiff’s motion is untimely and will be denied on this ground.
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Even if the Court considers Plaintiff’s motion, there is no basis for reconsideration.
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The majority of Plaintiff’s arguments and evidence pertain to the merits of his claim against
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Dr. Friedman, which is the claim alleged in Count II. That Count was not dismissed.
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Further, the Motion to Dismiss argued only failure to exhaust, and in deciding a motion to
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dismiss for nonexhaustion, the Court does not address the merits of the claim. See Wyatt v.
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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (dismissal for failure to exhaust remedies is
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not on the merits).
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As to the grievance documents that Plaintiff submits with his motion, this evidence
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could have been presented with his briefing on the Motion to Dismiss. See Kona Enters., 229
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F.3d at 890. Moreover, these documents do not establish exhaustion because they do not
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pertain to the claim in Count I, and most of them are dated post-June 4, 2012, the date
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Plaintiff filed his original Complaint alleging the same claim (see Doc. Doc. 35-1 at 8; Doc.
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35-2 at 5; Doc. 35-3 at 3, 5; Doc. 35-4 at 6).1 The two pre-June 4, 2012 grievances Plaintiff
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submits are both dated May 19, 2012 (Doc. 35-3 at 7; Doc. 35-4 at 11); however, the Court
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In its prior Order, the Court explained that both claims in Plaintiff’s Second Amended
Complaint were raised in his original Complaint; therefore, he was required to exhaust
remedies for each claim prior to filing his original Complaint (Doc. 29 at 6-7). See Vaden
v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006).
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reviewed these grievances in its prior Order and found that neither one relates to the claim
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in Count I (Doc. 29 at 7). Plaintiff provides no information or description of the grievances
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he alleges were destroyed or withheld by Defendants (see Doc. 35-2 at 2).
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For the above reasons, Plaintiff’s Motion for Reconsideration will be denied.
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IT IS ORDERED that reference to the Magistrate Judge is withdrawn as to
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Plaintiff’s Motion for Reconsideration (Doc. 35) and the motion is denied.
DATED this 18th day of March, 2014.
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