Zavala v. Rios et al

Filing 140

ORDER Denying 132 Plaintiff's Motion for an Order Directing Non-Parties' Response; ORDER Denying 137 Plaintiff's Motion for Reconsideration; Clerk to Terminate All Pendings Motions and Close Case, signed by Magistrate Judge Michael J. Seng on 10/21/15. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAUL SANCHEZ ZAVALA,

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Plaintiff,

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v.
HECTOR RIOS, et al.,

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Defendants.

Case No. 1:09-CV-00679-MJS (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR AN ORDER DIRECTING
NON-PARTIES’ RESPONSE
(ECF No. 132.)
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

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(ECF No. 137.)
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CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE

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I.

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Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights
action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) and 28 U.S.C. § 1331. The action proceeds on a Fifth
Amendment due process claim against Doe Defendants A and B. On August 31, 2015,
the Court granted Defendant Gonzaga’s motion for summary judgment. (ECF No. 135.)

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PROCEDURAL HISTORY

Before the Court is Plaintiff’s motion for an order directing non-parties to respond
to his interrogatories (ECF No. 132), and Plaintiff’s motion for reconsideration (ECF No.
137). Defendant Gonzaga opposed the motions. (ECF Nos. 133 & 139.) Plaintiff
replied to the motion regarding non-parties. (ECF No. 138.) The matters are deemed
submitted. Local Rule 230(l).
II.

MOTION FOR AN ORDER DIRECTING NON-PARTIES TO RESPOND
On March 17, 2015, the Court addressed several of Plaintiff’s pending motions

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and granted him thirty days to take written depositions to attempt to identify Defendants
A and B. (ECF No. 122.) On April 14, 2015, the Court granted Plaintiff an additional
thirty days to complete the written depositions, and noted that no further extensions of
time would be granted. (ECF No. 126.) On May 7, 2015, Plaintiff filed a motion for
appointment of a court officer to take written depositions. (ECF No. 127.) On the same
date, Plaintiff filed a motion to stay discovery proceedings or, in the alternative, for an
extension of time for Plaintiff to take written depositions. (ECF No. 128.) On June 8,
2015, the Court denied these requests. (ECF No. 131.)

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Plaintiff now seeks an order requiring six non-parties to respond to written
questions he attempted to serve on them in person between May 12, 2015 and May 15,
2015. Apparently, they either refused to accept the questions or they accepted but
refused to respond.

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Defendant objects to the motion because discovery is closed, this Court has
already rejected Plaintiff’s request for the depositions to be taken at public expense, and
Plaintiff cites no authority to support the relief he seeks.

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In reply, Plaintiff indicates that at least one of the non-parties (Marc Fischer) has
provided responses to his attorney but not yet forwarded them to Plaintiff. Plaintiff also
cites to Dixon v. Lavin, 2:03-cv-00262-DFL-JFM, (E.D. Cal. 2003), for the proposition
that the court can facilitate the taking of written depositions on a non-party in a prisoner
case.
In order to take a deposition by written questions, the party must provide notice
to all parties of the name and address of the deponent and the name of the officer
before whom the deposition will be taken with service of the questions. Fed. R. Civ. P.
31(a)(3). The party must also deliver a copy of the questions and the notice to the
officer taking the depositions. Fed. R. Civ. P. 31(b). A nonparty’s appearance may be
compelled by subpoena. See Fed. R. Civ. P. 45. Plaintiff failed to comply with these
procedures within the time period granted by the Court. Courts are not required to

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assist pro se plaintiffs in complying with this rule. See Pitts v. Davis, 2014 U.S. Dist.
LEXIS 581, *27-29 (E.D. Cal. January 2, 2014); see also Lopez v. Horel, 2007 U.S. Dist.
LEXIS 56903, *7-10 (N.D. Cal. July 27, 2007); see also Dell'Antonia v. California, 2005
U.S. Dist. LEXIS 24735, *4-5 (E.D. Cal. July 8, 2005). Accordingly, Plaintiff’s motion is
DENIED.
III.

MOTION FOR RECONSIDERATION
Federal Rule of Civil Procedure 59(e) allows the Court to alter or amend a

judgment. A motion under this rule is essentially a motion for reconsideration. See
Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). In seeking
reconsideration of an order, Local Rule 230(j) requires a party to show “what new or
different facts or circumstances are claimed to exist which did not exist or were not
shown upon such prior motion, or what other grounds exist for the motion.”
“A motion for reconsideration should not be granted, absent highly unusual
circumstances, unless the . . . court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change in the controlling law,” Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009),
and “‘[a] party seeking reconsideration must show more than a disagreement with the
Court’s decision, and ‘recapitulation . . .’” of that which was already considered by the
court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,
1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp.
834, 856 (D. N.J. 1992)).
Plaintiff argues that this Court erred in granting Defendant’s motion for summary
judgment because he raised a genuine issue of material fact, and the cases the Court
relied on in granting Defendant Gonzaga qualified immunity are distinguishable because
they involved adulterated, non-legal mail. The Court should have instead relied on
Bonner v. Outlaw, 552 F.3d 673 (8th Cir. 2009).
Defendant Gonzaga contends that Plaintiff’s argument regarding a genuine issue

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of material fact misconstrues the concept of qualified immunity, the Court already
considered and addressed Bonner in its ruling, and Plaintiff has not presented a
meaningful distinction in the cases cited by the Court.

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Plaintiff has not presented any newly discovered evidence or intervening change
in the law. Plaintiff essentially re-hashes arguments raised in his opposition to
Defendant’s motion for summary judgment. Plaintiff’s attempts to distinguish the
authority relied on by the Court are without merit.
IV.

CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s motion for an order directing non-parties to respond is DENIED
(ECF No. 132.);

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Plaintiff’s motion for reconsideration is DENIED; and

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Plaintiff has not identified Doe Defendants A and B. Service cannot be

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initiated on the remaining unknown Defendants. Therefore, the Clerk of

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Court shall terminate all pending motions and CLOSE this case.

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Dated:

October 21, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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