Garrett v. Myers et al

Filing 22

ORDER DENYING 21 Motion for Reconsideration, signed by Magistrate Judge Gerald B. Cohn on 07/19/2011. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES JAMIL GARRETT,

CASE NO. 1:10-cv-00779-GBC (PC)

Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

MYERS, et al.,

(ECF No. 21)
Defendant.

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ORDER

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I.

Plaintiff James Jamil Garrett is a state prisoner who proceeded pro se and in forma

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PROCEDURAL HISTORY

pauperis in this civil action pursuant to 42 U.S.C. § 1983.

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On June 15, 2011, the Court issued an Order dismissing Plaintiff’s Complaint

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without prejudice for failure to exhaust administrative remedies prior to filing suit. (ECF No.

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19.) Pending before the Court now is Plaintiff’s Motion for Reconsideration filed on July

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11, 2011. (ECF No. 21.)

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II.

LEGAL STANDARD

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

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

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equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary

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circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal

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quotations marks and citation omitted). The moving party “must demonstrate both injury
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and circumstances beyond his control . . . .” Id. (internal quotation marks and citation

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omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new

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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,” and “why the

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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

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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,” and it

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“may not be used to raise arguments or present evidence for the first time when they could

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reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and

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citations omitted) (emphasis in original).

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III.

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ANALYSIS
This action proceeded on Plaintiff’s Second Amended Complaint which alleged

unequal time in a multipurpose chapel and insufficient amounts of religious oil allowed.

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Plaintiff states that filing another action has placed a substantial burden on the

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Muslim community. Plaintiff points out that he does not have an affirmative duty to plead

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exhaustion. Plaintiff states that the delay in receiving a final decision at the Director’s Level

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should excuse his failure to exhaust prior to filing this action.

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First, the Court notes that the Muslim community is not a party to this proceeding.

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Second, the Court notes that this action was dismissed without prejudice and Plaintiff is

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free to file the same complaint again. Third, Plaintiff is correct in his argument that he does

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not have an affirmative duty to plead exhaustion. However, the Court may disregard

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factual allegations that are contradicted by exhibits attached to the complaint. Durning v.

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First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Plaintiff included the grievances

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he filed in relation to the multipurpose chapel and religious oil attached to many of his

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filings including the pending Motion for Reconsideration.

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As to Plaintiff’s delay argument, the Court finds it unpersuasive. Plaintiff filed a 602
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grievance related to not receiving time in the multipurpose chapel to conduct religious

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services on April 18, 2010. (ECF No. 1, pp. 13-15.) Plaintiff filed a 602 grievance related

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to the oil on October 28, 2010. (ECF No. 18, pp. 41-42.) Plaintiff originally filed this action

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on May 3, 2010. (ECF No. 1.)

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Pursuant to the Prison Litigation Reform Act (“PLRA”) of 1995, “[n]o action shall be

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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal

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law, by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). In order

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to satisfy Section 1997e(a), California state prisoners are required to use the available

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process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct.

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2378, 2383 (2006).Plaintiff’s argument that he should be excused due to prison officials’

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delayed response is meritless. Plaintiff filed this action days after filing a grievance about

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the multipurpose room. Furthermore, Plaintiff filed a grievance about the oil months after

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filing this action. Plaintiff did not even attempt to allow the grievance procedure to be

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exhausted. Thus, this action must be dismissed.

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IV.

CONCLUSION AND ORDER
Because Plaintiff did not meet his burden as the party moving for reconsideration,

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his motion is HEREBY DENIED. No further filings will be accepted in this closed case.

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IT IS SO ORDERED.

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Dated:
1j0bbc

July 19, 2011
UNITED STATES MAGISTRATE JUDGE

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