Coleman v. CDCR, et al.

Filing 71

ORDER DENYING Plaintiff's Motion for Reconsideration 70 ; ORDER REQUIRING Defendants to Answer Plaintiff's Fourth Amended Complaint Within Twenty Days, signed by Magistrate Judge Dennis L. Beck on 1/13/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT E. COLEMAN,

CASE NO. 1:09-CV-00224-DLB PC

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

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v.
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ORDER REQUIRING DEFENDANTS TO
ANSWER PLAINTIFF’S FOURTH
AMENDED COMPLAINT WITHIN
TWENTY DAYS

CDCR, et al.,
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Defendants.
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/

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Plaintiff Robert E. Coleman (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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against Defendants R. Chavez, A. Diaz, M. Lopez, P. Maldonado, T. Norton, and S. Rousseau.

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On April 6, 2011, Plaintiff filed his fourth amended complaint. Pl.’s Fourth Am. Compl.

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(“4AC”), Doc. 45. On August 17, 2011, Defendants filed a motion to dismiss pursuant to Rule

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12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, and pursuant to the

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unenumerated portion of Rule 12(b) for failure to exhaust administrative remedies. Defs.’ Mot.

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Dismiss, Doc. 57. On November 30, 2011, the Court granted in part and denied in part

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Defendant’s motion. Doc. 68. Pending before the Court is Plaintiff’s motion for reconsideration,

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filed December 14, 2011. The matter is submitted pursuant to Local Rule 230(l). Because

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Plaintiff’s motion seeks reconsideration of an order and not judgment, it is a motion pursuant to

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Federal Rule of Civil Procedure 60(b).
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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court.

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The Rule permits a district court to relieve a party from a final order or judgment on grounds of:

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“(1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party,

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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for

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reconsideration must be made within a reasonable time. Id.

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Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation marks and citation omitted). The

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moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id.

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(internal quotation marks and citation omitted). Local Rule 230(j) requires Plaintiff to show

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“what new or different facts or circumstances are claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.”

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

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circumstances, unless the district court is presented with newly discovered evidence, committed

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

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotation marks and citation omitted) (emphasis in

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original).

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Plaintiff has notified the Court that he is willing to proceed on the cognizable claims

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found in the Court’s November 30, 2011 Order. Mot. Reconsider 2. Plaintiff seeks

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reconsideration of the Court’s order which granted Defendants’ motion to dismiss as to

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Plaintiff’s claims against Defendants Maldonado, Diaz, and Lopez for retaliation against Plaintiff

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for filing an appeal to the warden. Id. at 2. Plaintiff contends that the Court dismissed the claim

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only as to the alleged adverse action of a Rules Violation Report for Plaintiff’s failure to obey a

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direct order. Id. Plaintiff contends that Defendants Maldonado, Diaz, and Lopez also placed

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Plaintiff on a property restriction and confiscation of all state and personal property for six

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months, when the punishment should have been property restriction for thirty days, and loss of
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television privileges for thirty days. Id.
The Court finds that Plaintiff has not presented grounds for reconsideration. Plaintiff’s

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pleadings failed to link Maldonado, Diaz, and Lopez to retaliation for Plaintiff’s warden’s appeal

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by putting Plaintiff on property restriction and confiscation of state and personal items for six

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months. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff alleged only that he was

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assessed property restriction and loss of television privileges for thirty days by Defendants Diaz

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and Lopez for refusing to obey a direct order. Though Plaintiff alleges that he received a six-

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month property restriction and confiscation of all state and personal property, he does not link

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Defendants Maldonado, Diaz, and Lopez to this alleged adverse action.1

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Defendants have yet to file an answer to Plaintiff’s fourth amended complaint and will be
so ordered.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion for reconsideration, filed December 14, 2011, is denied; and

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2.

Defendants are to serve and file an answer to Plaintiff’s fourth amended complaint

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within twenty (20) days from the date of service of this order.
IT IS SO ORDERED.
Dated:
3b142a

January 13, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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There is also an issue as to whether this constitutes adverse action for purposes of
retaliation. Even if the punishment for disobeying a direct order included property restriction for
six months rather than thirty days, there was still a legitimate penological reason for the action
taken against Plaintiff. Rhodes v. Robinson, 408 F.3d 559, 567- 68 (9th Cir. 2005). Plaintiff
concedes that he disobeyed a direct order, and thus the Rules Violation served a legitimate
penological purpose.
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