Knapp v. Cate, et al.

Filing 63

ORDER Denying 62 Plaintiff's Motion for Reconsideration, signed by Magistrate Judge Sandra M. Snyder on 8/24/11. Plaintiff is required to comply with August 8, 2011 60 Order Within Thirty-Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC CHARLES RODNEY KNAPP,

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CASE NO. 1:08-cv-01779-SMS PC

Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION

v.
(ECF No. 62)

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MATTHEW CATE, et al.,

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Defendants.
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I.

Procedural History

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Plaintiff Eric Charles Rodney Knapp (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 12132 (the

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Americans with Disabilities Act (ADA)), and 29 U.S.C.§ 794 (Rehabilitation Act (RA)) on

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November 20, 2008. On September 8, 2010, Plaintiff’s second amended complaint was dismissed

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with leave to amend. (ECF No. 33). On September 29, 2010, Plaintiff filed a third amended

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complaint. (ECF No. 37.) On February 4, 2011, Plaintiff filed a motion for reconsideration of the

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order issued on September 8, 2010, based upon the decision in Rhodes v Robinson, 621 F.3d 1002,

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1007 (9th Cir. 2010). (ECF No.44.) Based on the decision in Rhodes, on February 14, 2011, the

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Court granted reconsideration and Plaintiff was ordered to file a amended complaint, allowing

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Plaintiff to allege new and newly exhausted claims, within sixty days and sought appointment of

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counsel for Plaintiff. (ECF No. 45, 46.) Counsel was appointed and withdrew on March 16, 2011.

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(ECF No. 47.) On April 18, 2011, the Court appointed new counsel. (ECF No. 51.) On July 27,

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2011, the Court granted counsel’s request to withdraw as attorney of record. (ECF No. 59.)
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On August 8, 2011, the Court screened Plaintiff’s third amended complaint and found

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cognizable claims. Plaintiff was granted leave to file a supplemental complaint alleging new and

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newly exhausted claims that could be joined pursuant to Federal Rule of Civil Procedure 18. (ECF

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No. 60.) Plaintiff filed a motion for reconsideration on August 22, 2011. (ECF No. 62.)

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Plaintiff brings his motion requesting reconsideration by a District Court Judge. Plaintiff

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argues that screening the third amended complaint was clearly erroneous and contrary to law because

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the prior order had rendered it void; the dismissal of the second amended complaint was partly

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erroneous because of the holding in Rhodes; Plaintiff’s claims should not have been dismissed with

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prejudice because a claim should not be dismissed unless it is absolutely clear that the deficiencies

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could not be cured by amendment; and if the Court declines to reconsider the order, Plaintiff requests

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the Court certify an interlocutory appeal.

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II.

Motion for Reconsideration

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A.

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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms,

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the court may relieve a party . . .from a final judgment, order, or proceeding for the following

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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence .

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. . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;

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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where none of these

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factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th

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Cir. 1991).

Legal Standard

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order

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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation

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omitted). The moving party “must demonstrate both injury and circumstances beyond his control

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. . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed to exist

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which did not exist or were not shown upon such prior motion, or what other grounds exist for the
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motion,” and “why the facts or circumstances were not shown at the time of the prior motion.”

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

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

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

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present evidence for the first time when they could reasonably have been raised earlier in the

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

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2009) (internal quotations marks and citations omitted) (emphasis in original).

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B.

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Initially, the Court shall address Plaintiff’s request for reconsideration by a District Court

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Judge. On December 1, 2008, Plaintiff filed a notice of consent to the jurisdiction of the Magistrate

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Judge. (ECF No. 5.) Once a civil case is referred to a Magistrate Judge under 28 U.S.C. § 636(c),

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the reference can be withdrawn only “for good cause shown on its own motion, or under

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extraordinary circumstances shown by any party.” Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).

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Plaintiff has not presented extraordinary circumstances, nor does the Court find good cause, entitling

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Plaintiff to withdraw his consent to the jurisdiction of the Magistrate Judge. Plaintiff’s motion for

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reconsideration by a District Judge is denied.

Reconsideration by District Court Judge

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C.

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Plaintiff incorrectly argues that the order on his motion for reconsideration rendered the third

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amended complaint void. The order did not find that the dismissal of the second amended complaint

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was erroneous due to the decision in Rhodes v Robinson, 621 F.3d 1002 (9th Cir. 2010). The order

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dismissing the second amended complaint informed Plaintiff that he could not attempt to litigate

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claims based on incidents that occurred after this lawsuit was initiated because they would not have

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been exhausted at the time Plaintiff filed this action. Due to the decision in Rhodes, the Court

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permitted Plaintiff to include new and newly exhausted claims that occurred after November 8, 2008.

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The September 8, 2010, order remained valid in all other respects. The third amended complaint was

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not stricken from the record or in any way rendered void. The third amended complaint was the

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operative pleading and was properly screened as no amended complaint had been filed within the

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time granted by the Court.

Third Amended Complaint

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Additionally, the Court’s order for Plaintiff to file a supplemental complaint alleging only

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those claims properly allowed by Federal Rule of Civil Procedure 18 is not clearly erroneous or

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contrary to law. Plaintiff appears to be arguing that Rhodes allows him to bring any claims that have

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occurred since the filing of the complaint. The Court rejects this argument. In Rhodes the court

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found that the complaint filed was actually a supplemental complaint alleging claims that arose after

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the initial complaint was filed. Rhodes, 621 F.3d at 1006. Rule 15(d) clearly allows for the filing

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of a supplemental complaint. As stated in Rhodes, “a supplemental complaint alleging new, and

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newly-exhausted claims could never be filed under the PLRA.” Id. at 1007. Plaintiff has been

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granted leave to file a supplemental complaint alleging related claims that have occurred since he

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filed his complaint. This is consistent with the holding in Rhodes.

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Plaintiff argues that the Court cannot restrict his supplemental pleading to twenty five pages.

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Given that Plaintiff may only allege related claims that arose since he filed his complaint, twenty five

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pages is sufficient to set forth a “a short and plain statement of the claim showing that [Plaintiff] is

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entitled to relief.” Federal Rule of Civil Procedure 8(a)(2).

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D.

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Plaintiff argues that the Court erred in dismissing his claims with prejudice because a claim

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should not be dismissed unless it is absolutely clear that the deficiencies could not be cured by

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amendment. Plaintiff had been granted leave to amend and, with specific guidance from the Court,

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has submitted four pleadings without stating a cognizable claim. It is within the Court’s discretion

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to dismiss the complaint, with prejudice, due to the repeated failure of Plaintiff to cure the

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deficiencies in the pleadings. Destfino v. Reiswig, 630 F.3d 952, 958 (9th Cir. 2011). The decision

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to dismiss Plaintiff’s claims and certain defendants with prejudice was not clearly erroneous or

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contrary to law.

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E.

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Finally, Plaintiff requests the Court certify the order for immediate appeal. Under 28 U.S.C.

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§ 1291, the court of appeals has jurisdiction over final decisions of the district court. Couch v.

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Telescope Inc. 611 F3.d 629, 632 (9th Cir. 2010). However, the district court may certify an order

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that is otherwise not appealable where “such order involves a controlling question of law as to which

Dismissed Defendants and Claims

Request for Certificate of Appeal

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there is a substantial ground for difference of opinion and that an immediate appeal from the order

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may materially advance the ultimate termination of the litigation.” Couch, 611 F.3d at 311 (quoting

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28 U.S.C. § 1291(b)). The Court fails to find that the order at issue in this action involves a

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controlling question of law to which there is a substantial ground for a difference of opinion. The

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decision which Plaintiff relies upon, Rhodes, states that new and unexhausted claims may not be

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brought in a supplemental complaint. Additionally, Rhodes did not address Federal Rule of Civil

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Procedure 18, which precludes Plaintiff from bringing unrelated claims in this action. Accordingly,

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the Court denies Plaintiff’s motion for a certificate of appeal.

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III.

Conclusion and Order

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The basis for Plaintiff’s motion for reconsideration is his disagreement with the Court’s

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screening decision and the Court’s application of the law to his complaint. Plaintiff has not shown

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clear error or other meritorious grounds for relief, and has therefore not met his burden as the party

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moving for reconsideration. Marlyn Nutraceuticals, Inc., 571 F.3d at 880. Plaintiff’s disagreement

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is not sufficient grounds for relief from the order. Westlands Water Dist., 134 F.Supp.2d at 1131.

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Plaintiff’s motion is HEREBY DENIED, with prejudice, and Plaintiff is required to comply

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with the Court’s orders, issued August 8, 2011, within thirty (30) days from the date of service of

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this order or this action will be dismissed for failure to comply with a court order.

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IT IS SO ORDERED.

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Dated:
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August 24, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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