Dorrough v. Ruff et al

Filing 47

ORDER Denying Rule 59(e) Motion For Reconsideration (Doc. 45 ), signed by District Judge Lawrence J. O'Neill on 12/15/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL REED DORROUGH,

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CASE NO: 1:08-cv-01366-LJO-GBC (PC)

Plaintiff,

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v.

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ORDER DENYING RULE 59(e) MOTION FOR
RECONSIDERATION

M. RUFF, et al.,

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Defendants.

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/

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I.

Procedural Background

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Plaintiff Michael Reed Dorrough is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. On May 14, 2010, Defendants Ruff, Fischer
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and Rosenkrans filed a motion to dismiss. Doc. 18. On June 3, 2010, Defendant Turmezei filed a
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joinder to the motion to dismiss. Doc. 20. On July 1, 2011, the magistrate judge assigned to the case
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denied Defendants’ motion to dismiss. Doc. 26. On July 6, 2011, Defendants filed a motion for
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reconsideration. Doc. 27. On November 9, 2011, the District Court Judge granted Defendants’
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motion for reconsideration, vacated the magistrate judge’s order filed on July 1, 2011, and dismissed
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the action with prejudice for failure to state a claim. Doc. 39. On November 30, 2011, Plaintiff filed
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a notice of appeal. Doc. 41. On December 5, 2011, Plaintiff filed a Rule 59(e) motion for
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reconsideration. Doc. 45.
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II.

Legal Standard and Analysis

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Under Federal Rule of Civil Procedure 59(e), a party may move to have the court amend its

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judgment within twenty-eight days after entry of the judgment. Fed. R. Civ. P. 59(e). ‘Since specific

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grounds for a motion to amend or alter are not listed in the rule, the district court enjoys considerable

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discretion in granting or denying the motion.’ Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th

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Cir. 2011) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc) (per

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curiam)). But amending a judgment after its entry remains ‘an extraordinary remedy which should

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be used sparingly.’ Id. In general, there are four basic grounds upon which a Rule 59(e) motion may

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be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the

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judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable

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evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is

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justified by an intervening change in controlling law. Id.

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In Plaintiff’s motions for reconsideration, Plaintiff argues that the Court erred in its order

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filed November 9, 2011, by not considering: 1) whether Plaintiff had a constitutionally protected

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liberty interest in remaining free from administrative segregation; and 2) “whether or not the twenty-

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three years that Plaintiff has been housed in isolation even though Plaintiff has not been charged with

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or accursed of commissioning any ‘unlawful act(s) or act(s) of misconduct classified as serious

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pursuant to § 3385 of the CCR Title 15,’ constitutes an ‘atypical and significant hardship in relation

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to the ordinary incidents of prison life.’” Doc. 45 at 1-2. Further, Plaintiff argues that the Court

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erred in “introducing new, previously used material as evidence that has nothing to do with this case

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and that was never used in Plaintiff’s 2006 validation.” Doc. 45 at 4. Plaintiff argues that the Court

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should not have considered the tattoo as evidence since § 3378 of the CCR Title 15 states that

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Defendants cannot use information such as a gang tattoo for validation purposes if such tattoo is

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older than six years old and Plaintiff asserts that there is no dispute that Plaintiff has had his tattoo

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since 1978. Doc. 45 at 6.

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A.

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Regarding Plaintiff’s assertions about failing to consider Plaintiff’s constitutionally protected

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interest, even assuming prisoners have a protected liberty interest in avoiding long term confinement

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in the Security Housing Unit (“SHU”), Plaintiff still would need to overcome the requirement that

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his gang validation was not supported by “some evidence.”

Constitutionally Protected Liberty Interest

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B.

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It does not appear that Plaintiff has previously raised the issue of remaining in the SHU for

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twenty-three years and Plaintiff fails to direct the Court where he has previously brought up the

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issue. A district court may disregard legal arguments already considered and facts that are

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introduced for the first time in the motion for reconsideration that were available earlier.

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Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). It appeared from the complaint

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that Plaintiff was no longer in the SHU but was re-validated as a Black Guerilla Family (“BGF”)

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gang member in 2006.

The Relevance of Plaintiff being isolation for twenty-three years

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If Plaintiff was already in the SHU but had a periodic review in 2006 to retain Plaintiff in the

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SHU, challenging the sufficiency of procedures employed in initially placing a prisoner in the

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secured housing unit is different from challenging the sufficiency of procedures used in determining

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whether to retain a prisoner in administrative segregation. See Hewitt v. Helms, 459 U.S. 460, 477

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n. 9 (1983), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Toussaint v.

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McCarthy, 801 F.2d 1080, 1101 (9th Cir.1986); Sheley v. Dugger, 833 F.2d 1420 (11th Cir. 1987).

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As the United State Supreme Court noted in dicta:

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Prison officials must engage in some sort of periodic review of the confinement of
[administratively segregated] inmates. This review will not necessarily require that
prison officials permit the submission of any additional evidence or statements. The
decision whether a prisoner remains a security risk will be based on facts relating to
a particular prisoner-which will have been ascertained when determining to confine
the inmate to administrative segregation-and on the officials' general knowledge of
prison conditions and tensions, which are singularly unsuited for “proof” in any
highly structured manner.

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Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983), overruled on other grounds by Sandin v. Conner,
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515 U.S. 472 (1995). Periodic reviews that a prisoner receives while being held in the administrative
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segregation unit are sufficient procedural protections to satisfy the Due Process Clause. See Hewitt

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v. Helms, 459 U.S. 460, 477 n. 9 (1983), overruled on other grounds by Sandin v. Conner, 515 U.S.

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472 (1995); Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir.1986) (instructing that while

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prison officials must engage in some sort of periodic review of the confinement of prisoners held in

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administrative segregation, this review does not require that prison officials permit the submission

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of additional evidence or statements); Black v. Parke, 4 F.3d 442, 447-48 (6th Cir. 1993); Sheley v.

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Dugger, 833 F.2d 1420 (11th Cir. 1987); Pina v. McGrath, 299 Fed.Appx. 726, 727 (9th Cir. 2008)

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(unpublished); see also McKeithan v. Beard, 322 Fed.Appx. 194, 199 (3d Cir. 2009) (unpublished).

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As it appears this is the first time Plaintiff is raising this issue, the Court will disregard it.
Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

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C.

Allegation that the Court used new evidence

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Plaintiff asserts that the Court erred in “introducing new, previously used material as

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evidence that has nothing to do with this case and that was never used in Plaintiff’s 2006 validation.”

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Doc. 45 at 4. Plaintiff’s contention is without merit. The Court took judicial notice of evidence that

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Plaintiff attached to his own original complaint. Doc. 39 at 4 n.1 (taking judicial notice of Plaintiff

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exhibits submitted in support of Plaintiff’s original complaint).

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D.

The Relevance of the Tattoo

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Plaintiff argues that based on California codes, Defendants cannot use the same tattoos that

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he has had for over thirty-three years to re-validate Plaintiff as a member of BGF gang. Essentially,

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Plaintiff argues that a tattoo can be so old that it lacks having sufficient indicia of reliability. See

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Harrison v. McGrath, No. 3:02-cv-01924, 2004 WL 1465698, at * 6 (N.D. Cal., June 21, 2004). The

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Ninth Circuit in Bruce v. Ylst, supports a finding that repeated use of the same evidence may not be

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contrary to Constitutional law. See Bruce v. Ylst, 351 F.3d 1283, 1290 (9th Cir. 2003) (“The prison

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cannot be foreclosed from using the same evidence in the future in connection with his continuing

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imprisonment.”). However, whether a tattoo can be “too old” to provide a sufficient indicia of

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reliability has yet to be throughly addressed. In Treglia v. Director of California Dept. of

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Corrections, the Plaintiff claimed that he had his gang affiliated tattoo since the age of twelve and

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did not understand the full significance of the tattoo, however, the Court found that other evidence
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was available to satisfy the “some evidence” standard. Treglia v. Director of California Dept. of

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Corrections, No. 2:09-cv-352-KJN, 2010 WL 4905741, at *6 (E.D. Cal. November 24, 2010). The

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court in Harrison v. McGrath, observed that “There may be a point at which evidence is so old and

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remote, e.g., 20–30 years old, that it cannot clear the very low “some evidence” hurdle to show

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current membership in a gang, but the 1—and 3–year old evidence used here to validate Harrison,

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as a matter of law, is not so old that it does not meet the some evidence standard.” Harrison v.

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McGrath, No. 3:02-cv-01924, 2004 WL 1465698, at * 6 (N.D. Cal., June 21, 2004).

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In this instance, since only one piece of evidence with a sufficient indicia of reliability

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satisfies the “some evidence” standard, the Court declines to make a final determination as to

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whether Plaintiff’s tattoo is too old to carry a sufficient indicia or reliability. Bruce v. Ylst, 351 F.3d

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1283, 1288 (9th Cir. 2003). In this instance, the Court found that the evidence from the various

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correspondences and third part mail contacts carried sufficient indicia of reliability to meet the “some

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evidence” standard. Doc. 39. Therefore, Plaintiff has failed to demonstrate that the dismissal of his

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action should be vacated.

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III.

Conclusions and Order

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The Court finds that Plaintiff has failed to demonstrate that he is entitled to reconsideration

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pursuant to Rule 59(e). Having carefully reviewed the entire file, the Court finds its order dismissing

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Plaintiff’s action is supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration filed on

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December 5, 2011, is DENIED. Doc. 45.

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IT IS SO ORDERED.

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Dated:
b9ed48

December 15, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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