Brown v. Kavavnaugh et al

Filing 85

ORDER Denying Plaintiff's Motion Requesting The Reopening Of Judgment (ECF No. 74 ), signed by District Judge Lawrence J. O'Neill on 4/25/2013. (Fahrney, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KAREEM BROWN,

12

Plaintiff,

13
14

v.
J. KAVANAUGH, et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)

Case No.: 1:08-cv-01764-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION
REQUESTING THE REOPENING OF
JUDGMENT
(ECF No. 74)

17

Plaintiff Kareem Brown (“Plaintiff”) is a state prisoner proceeding pro se and in forma

18

pauperis in this civil rights action pursuant 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s

19

complaint against Defendant Garcia for reporting that Plaintiff forced open the housing unit door on

20

August 26, 2008, as retaliation in violation of the First Amendment; and against Defendant Kavanaugh

21

for suspending Plaintiff from the Men’s Advisory Council (“MAC”) on August 26, 2008, as retaliation

22

in violation of the First Amendment. The matter is set for jury trial on May 2, 2013.
Currently pending is Plaintiff’s motion requesting the reopening of judgment pursuant to

23
24

Federal Rule of Civil Procedure 60(b)(1), which was filed on April 4, 2013. (ECF No. 74.)

25

Defendants Garcia and Kavanaugh filed an opposition to the motion on April 11, 2013. (ECF No. 80.)

26

For the reasons set forth more fully below, Plaintiff’s motion requesting the reopening of judgment is

27

DENIED.

28

///
1

1

I.

Procedural Background

2

Following remand by the Ninth Circuit Court of Appeals, this action proceeded on Plaintiff’s

3

complaint, filed November 18, 2008, against Defendants Garcia and Kavanaugh for retaliation in

4

violation of the First Amendment.

5

Defendants filed a motion for summary judgment on March 15, 2012, and Plaintiff opposed the

6

motion. After briefing was concluded, the magistrate judge issued findings and recommendations,

7

which recommended that Defendants’ motion for summary judgment be granted in part and denied in

8

part. Specifically, the magistrate judge recommended as follows:

9
10
11
12
13
14
15
16
17

1. Defendant Garcia’s motion for summary judgment for reporting that
Plaintiff forced open the housing unit door on August 26, 2008, be
DENIED;
2. Defendant Garcia’s motion for summary judgment for refusing
Plaintiff access to the housing unit on October 14, 2008, be
GRANTED;
3. Defendant Kavanaugh’s motion for summary judgment for suspending
Plaintiff from the MAC on August 26, 2008, be DENIED;
4. Defendant Kavanaugh’s motion for summary judgement for disposing
of Plaintiff’s burrito on November 9, 2008, be GRANTED;
5. Defendant Kavanaugh’s motion for summary judgment for suspending
Plaintiff from the MAC on November 9, 2008, be GRANTED; and
6. Defendants Kavanaugh and Garcia’s motion for summary judgment on
the grounds of qualified immunity be denied.

18

(ECF No. 50, p. 24.) On October 24, 2012, Plaintiff filed objections to the magistrate judge’s findings

19

and recommendations. (ECF No. 51.) On October 26, 2012, following consideration of Plaintiff’s

20

objections, the undersigned adopted the magistrate judge’s findings and recommendations in full, and

21

the action proceeded against Defendant Garcia for retaliation by reporting that Plaintiff forced open

22

the housing unit door and Defendant Kavanaugh for retaliation by suspending Plaintiff from the Men’s

23

Advisory Council on August 26, 2008, in violation of the First Amendment. (ECF No. 52.)

24

On October 30, 2012, the Court issued a Second Scheduling Order, which set the date for a

25

Telephonic Trial Confirmation Hearing on March 14, 2013, and the date for a jury trial on April 30,

26

2013. (ECF No. 53.)

27
28

On February 4, 2013, after three months without any activity in this case, Plaintiff requested an
extension of time to file his pretrial statement. (ECF No. 54.) Defendants did not oppose the
2

1

extension, and the Court granted Plaintiff until February 22, 2013 to file his pretrial statement. (ECF

2

No. 56.)
On February 27, 2013, Plaintiff filed his pretrial statement, a trial brief, a list of trial exhibits,

3
4

four separate motions in limine, a notice of attempted settlement, a motion for court appointed counsel

5

and a motion to reserve the right to file objections at trial. (ECF Nos. 57-66.) Defendants filed their

6

pretrial statement on March 8, 2013. (ECF No. 67.)

7

On March 15, 2013, the Court held a pretrial conference and confirmed the matter for trial.

8

(ECF No. 69.) Thereafter, on March 18, 2013, the Court issued a written pretrial order. (ECF No.

9

72.) The Court also issued an order on Plaintiff’s pending motions in limine. (ECF No. 71.) Due to

10

the Court’s availability, the jury trial was continued from April 30, 2013, to May 2, 2013. (ECF No.

11

73.)

12

On April 4, 2013, Plaintiff filed the instant motion requesting the reopening of judgment.

13

Plaintiff contends that the Court erred in granting partial summary judgment in favor of Defendants.

14

Specifically, he challenges the Court’s application of the “favorable termination rule” of Heck v.

15

Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), to the August 26, 2008, and November 9, 2008 rules

16

violations.

17

Defendants opposed the motion to reopen judgment on April 11, 2013. Defendants counter

18

that Plaintiff may not challenge the order granting partial summary judgment pursuant to Federal Rule

19

of Civil Procedure 60 because it is not a “final order.” Defendants also contend that Plaintiff has

20

failed to present any newly discovery evidence or intervening change in the law to support

21

reconsideration.

22

II.

23

Plaintiff brings his motion under Federal Rule of Civil Procedure 60(b). By its terms, Rule

Discussion

24

60(b) applies only to a “final judgment, order, or proceeding.” Fed. R. Civ. P. 60(b); see School Dist.

25

No. 5 v. Lundgren, 259 F.2d 101, 104 (9th Cir.1958); see also United States v. Martin, 226 F.3d 1042,

26

1048 n. 8 (9th Cir.2000) (Rule 60(b) applies only to motions attacking “final, appealable orders”). An

27

order partially granting summary judgment is not a final order. Dannenberg v. Software Toolworks

28
3

1

Inc., 16 F.3d 1073, 1074 (9th Cir. 1994) (grants of partial summary judgment are not final, appealable

2

orders). Thus, Rule 60(b) provides no basis to reopen the partial summary judgment.

3

Insofar as Plaintiff merely seeks reconsideration of the Court’s partial grant of summary

4

judgment, Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or different facts

5

or circumstances are claimed to exist which did not exist or were not shown upon such prior motion,

6

or what other grounds exist for the motion,” and “why the facts or circumstances were not shown at

7

the time of the prior motion.” Local Rule 230(j)(3), (4).

8

“A motion for reconsideration should not be granted, absent highly unusual circumstances,

9

unless the district court is presented with newly discovered evidence, committed clear error, or if there

10

is an intervening change in the controlling law,” and it “may not be used to raise arguments or present

11

evidence for the first time when they could reasonably have been raised earlier in the litigation.”

12

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

13

(internal quotations marks and citations omitted) (emphasis in original).

14

Plaintiff has not presented the Court with new or different facts or circumstances that did not

15

exist or were not shown in connection with Defendants’ motion for summary judgment. Instead,

16

Plaintiff is making an additional attempt to argue that Heck v. Humphrey does not apply. (ECF No.

17

74, p. 6.) Plaintiff previously asserted this argument in his opposition to Defendants’ motion for

18

summary judgment. (ECF No. 47, p. 5.) Plaintiff also argued in his objections to the magistrate

19

judge’s findings and recommendation that he was serving two life sentences and, therefore, his

20

retaliation claims based upon the rule violations were not barred by the favorable termination rule.

21

(ECF No. 51, pp. 3-4.) However, the Court declined to consider that portion of Plaintiff’s evidence

22

and argument raised for the first time in his objections. Plaintiff attempts to raise the same arguments

23

in his motion for reconsideration. (ECF No. 74, p. 6.)

24

Plaintiff has failed to establish that reconsideration of the dismissed claims is warranted in this

25

action. Plaintiff could have submitted all of his arguments and assertions regarding the application of

26

Heck v. Humphrey in his opposition to Defendants’ motion for summary judgment. Plaintiff does not

27

provide the Court with any reason to suggest otherwise. He also does not explain why he waited until

28

the month originally scheduled for trial to challenge the Court’s ruling.
4

1

III.

Conclusion

2

For the reasons stated, Plaintiff’s motion requesting the reopening of judgment is DENIED.

3
4
5
6
7
8

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

April 25, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

66h44d

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5