Zavala v. Rios et al

Filing 79

ORDER (1) DENYING Plaintiff's Motion for Reconsideration 76 , and (2) DENYING WITHOUT PREJUDICE Plaintiff's Motion for Extension of Time 77 , signed by Magistrate Judge Michael J. Seng on 10/30/14. (Hellings, J)

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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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CASE NO. 1:09-cv-00679-MJS (PC)
ORDER (1) DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION (ECF
No. 76), AND (2) DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION FOR
EXTENSION OF TIME (ECF No. 77)

Defendants.

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I.

PROCEDURAL HISTORY

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. § 1331.

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On August 15, 2013, the Court screened Plaintiff‟s seventh amended complaint

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and found that it stated a cognizable Fifth Amendment due process claim against

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Defendants A, B, and Gonzaga. (ECF No. 71.) The Court found that Plaintiff failed to

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state any other claims against any other defendants; dismissed Defendants Capel, Silva,

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and the United States; and dismissed with prejudice Plaintiff‟s First Amendment free

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speech and Federal Tort Claims Act claims. (Id.)

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On August 29, 2013, Plaintiff filed objections to the Court‟s screening order (ECF

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No. 72), which the Court construed as a motion for reconsideration and denied on

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August 25, 2014. (ECF No. 75.)

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Before the Court is Plaintiff‟s motion for reconsideration of the order denying

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Plaintiff‟s prior motion for reconsideration (ECF No. 76) and his motion to extend the

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discovery cut-off (ECF No. 77).

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II.

MOTION FOR RECONSIDERATION

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Plaintiff reasserts his argument that the Court incorrectly concluded that Plaintiff

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failed to state a cognizable First Amendment claim or Federal Tort Claims Act claim.

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(ECF No. 76.)

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1.

Legal Standard

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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,

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committed clear error, or if there is an intervening change in the controlling law.” Marlyn

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

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“A motion for reconsideration may not be used to raise arguments or present evidence

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

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Moreover, “recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

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requires that a party seeking reconsideration show that “new or different facts or

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

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prior motion, or what other grounds exist for the motion . . . .”
Plaintiff’s Seventh Amended Complaint

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2.

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The allegations in Plaintiff‟s seventh amended complaint occurred at United

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States Penitentiary in Atwater, California (“USP-Atwater”), where Plaintiff is currently

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housed.

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The complaint alleges violations of Plaintiff‟s rights under the First Amendment,

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Fifth Amendment, and Federal Tort Claims Act. Plaintiff names the following individuals

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as defendants: 1) Hector Rios, former USP-Atwater Warden, 2) the United States,
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3) Defendant A, USP-Atwater mail room employee, 4) Defendant B, USP-Atwater mail

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room employee, 5) Gonzaga, USP-Atwater mail room supervisor, 6) Capel, correctional

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counselor for Plaintiff at USP-Atwater, and 7) Silva, correctional counselor for Plaintiff at

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USP-Atwater.

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Plaintiff‟s allegations may be summarized essentially as follows:

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Legal mail related to Plaintiff‟s criminal appeal was rejected by Defendants A and

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B. Defendant Gonzaga informed Plaintiff that there was no record of Plaintiff‟s mail

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having been rejected by the prison, refused to accept Plaintiff‟s package authorization

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form, and informed Plaintiff that no authorization form was required for packages sent by

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an attorney, even though a package sent by Plaintiff‟s attorney had been rejected for

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lack of an authorization form. Plaintiff‟s criminal appeal ultimately was denied.

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Defendants Capel and Silva refused Plaintiff‟s request for an unmonitored phone

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line on which to speak to his attorney, and informed Plaintiff that the request should

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come directly from Plaintiff‟s attorney. Plaintiff was unable to speak with his attorney

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while his appellate briefs were drafted. As a result, the appellate record for his appeal

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was incomplete.

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3.

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Discussion
a.

First Amendment

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“[T]he constitutional rights that prisoners possess are more limited in scope than

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the constitutional rights held by individuals in society at large. In the First Amendment

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context . . . some rights are simply inconsistent with the status of a prison or „with the

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legitimate penological objectives of the corrections system.‟” Shaw v. Murphy, 532 U.S.

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223, 229 (2001) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). Thus, jail

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personnel may regulate speech if such restriction is reasonably related to legitimate

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penological interests and an inmate is not deprived of all means of expression. Valdez v.

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Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (citing Turner v. Safley, 482 U.S. 78,

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92 (1986)).

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The United States Constitution does not provide for an unfettered right to use a

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telephone. Rather, to state a constitutional claim, a plaintiff must allege that the use of a

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phone is connected to another constitutional right, such as the right of free speech or

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access to the courts. Even then, a telephone is only one means for an inmate to

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exercise the extremely limited First Amendment right to communicate with persons

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outside the jail. Valdez, 302 F.3d at 1048. That same right may be met through other

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means such as correspondence or personal visits.

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i.

Prior Ruling

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In his prior objections, Plaintiff alleged that his attorney did not want to speak on a

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monitored telephone line,that Defendants Capel and Silva denied his requests for a legal

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telephone call, and that Plaintiff did not have any other avenue for speaking with his

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attorney. (ECF No. 72.) In denying the objections, the Court noted that Plaintiff‟s seventh

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amended complaint did not allege that Plaintiff had no other avenue for speaking with his

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attorney. (ECF No. 75.) The Court also noted that Plaintiff alleged he was told his

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attorney could submit a request for a legal telephone call. The Court pointed out that

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Plaintiff did not allege that his attorney requested a legal telephone call or that such a

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request was denied, or that other avenues of communication, such as personal visits,

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were not available.

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ii.

Reconsideration

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In the instant motion for reconsideration, Plaintiff submits as Exhibit A documents

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he contends previously were submitted with his complaint. (ECF No. 76 at 6.) Exhibit A

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contains administrative appeal documents in which Plaintiff states he was denied legal

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telephone calls.

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These documents were not included as exhibits to Plaintiff‟s seventh amended

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complaint. (ECF No. 69.) Plaintiff, having submitted over one hundred pages of

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documents with his various complaints, may have submitted these documents with one

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of his six prior complaints. The Court is not required to review these documents each

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time Plaintiff files a new complaint. As Plaintiff has been advised, an amended complaint
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must be complete in itself without reference to any prior pleading. Local Rule 220; Loux

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v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Additionally, review of the documents submitted does not help his cause. Included

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in those documents are letters between Plaintiff and his counsel, indicating Plaintiff‟s

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understanding that a request from his attorney was required before a legal telephone call

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could be arranged. (See, e.g., ECF No.10 at 40.) Counsel responded that no request

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was made because she viewed further communication with Plaintiff to be unnecessary.

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(ECF No. 10 at 44.) Plaintiff, quite obviously, disagreed with his counsel‟s assessment.

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(ECF No. 10 at 57-59.) However, nothing indicates that a request by counsel for a legal

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telephone call with Plaintiff was denied by correctional staff.
b.

Federal Tort Claims Act

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The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680, waives

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the sovereign immunity of the United States for certain torts committed by federal

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employees. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA provides that district

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courts have exclusive jurisdiction over civil actions against the United States for money

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damages “for injury or loss of property, or personal injury or death caused by the

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negligent or wrongful act or omission of any employee of the [federal] Government while

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acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA

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allows federal inmates to sue the United States for injuries sustained while incarcerated.

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28 U.S.C. § 2674.

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Under the FTCA a claim must be filed with the appropriate federal agency within

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two years of its accrual and suit must be commenced within six months of the agency‟s

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denial of the claim. 28 U.S.C. § 2401(b). This administrative exhaustion requirement is

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mandatory and jurisdictional. Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir.

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2011) (quoting Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000)). Exhaustion

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must be affirmatively alleged in the complaint. Gillespie v. Civiletti, 629 F.2d 637, 640

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(9th Cir. 1980).

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i.

Prior ruling

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In his prior objections, Plaintiff argued that he had exhausted his administrative

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remedies and that “certain individuals‟ failure to allow Plaintiff to receive packages from

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his attorney” constituted a tortious act on the part of the United States. (ECF No. 72 at

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4.) The Court found insufficient Plaintiff‟s conclusory statement that he had “exhausted

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his administrative remedies by filing his Administrative claims with [the] appropriate

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federal agency.” Additionally, the Court concluded that Plaintiff‟s allegation that

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Defendants didn‟t allow Plaintiff to receive packages, standing alone, was insufficient to

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state a tort claim.

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ii.

Reconsideration

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In the instant motion, Plaintiff contends that documents establishing exhaustion

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were submitted with his complaint. Again, however, no documents concerning

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exhaustion were submitted with Plaintiff‟s seventh amended complaint. Further, the

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documents submitted with his motion for reconsideration demonstrate that Plaintiff did

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not properly exhaust his administrative remedies. Although Plaintiff filed a FTCA

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administrative claim, consideration of that claim was barred because Plaintiff‟s filing was

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untimely. (ECF No. 76 at 21.) Additionally, even assuming Plaintiff had exhausted his

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claims, he has not alleged facts to meet the substantive elements of a tort claim.

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4.

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Based on the foregoing, the Court will deny Plaintiff‟s motion for reconsideration.

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III.

Conclusion

MOTION TO EXTEND THE DISCOVERY CUT-OFF
Federal Rule of Civil Procedure 16(b)(4) allows the Court to modify its scheduling

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order for good cause. The “good cause” standard focuses primarily on the diligence of

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the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609 (9th Cir. 1992). “[C]arelessness is not compatible with a finding of diligence and

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offers no reason for a grant of relief.” Id. “Although the existence or degree of prejudice

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to the party opposing the modification might supply additional reasons to deny a motion,

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the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id.
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The current discovery cut-off is November 30, 2014. (ECF No. 73). Plaintiff seeks

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to extend the cut-off by an additional 45 days. (ECF No. 77.) Plaintiff contends that he

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submitted various discovery requests to Defendant Gonzaga in early September, but

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that Defendant has not responded to all of them. Additionally, in Defendant‟s August 28,

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2014 response to other discovery requests, Defendant‟s counsel indicated that he had

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not fully completed his investigation into the facts of this case, his discovery, or his

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preparation for trial.

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Defendant Gonzaga does not oppose the motion provided that the dispositive
motion deadline also is extended by 45 days. (ECF No. 78.)

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Plaintiff has not provided good cause for extending the discovery cut-off. He has

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not sought to compel the discovery that Defendants allegedly have not responded to, nor

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explained why discovery cannot be completed by the November 30, 2014 deadline.

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Based on the limited information provided in Plaintiff‟s motion, the Court is unable to

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determine what purpose would be served by extending the discovery cut-off.
The Court will deny Plaintiff‟s motion without prejudice to Plaintiff seeking an

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extension of time supported by good cause.

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IV.

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CONCLUSION AND ORDER
Plaintiff has not met the standard for granting a motion for reconsideration, and

accordingly, his motion for reconsideration (ECF No. 76) is HEREBY DENIED.

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Plaintiff has not presented good cause for modifying the Court‟s scheduling order,

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and accordingly his motion to extend the discovery cut-off (ECF No. 77) is HEREBY

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DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

October 30, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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