Smith v. Allison et al
Filing
141
ORDER Denying 128 Plaintiff's Request for Review/Reconsideration Per Fed R.Civ.P 60(b)(1), signed by District Judge Lawrence J. O'Neill on 5/12/15. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAWRENCE CHRISTOPHER SMITH,
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Plaintiff,
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v.
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D. GOSS, et al.,
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Case No.: 1:10-cv-01814-LJO-JLT (PC)
ORDER DENYING PLAINTIFF'S REQUEST
FOR REVIEW/RECONSIDERATION PER FED.
R. CIV. P. 60(b)(1)
(Doc. 128)
Defendants.
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Plaintiff Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 which he filed on October 1,
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2010. (Doc. 1.) Initially, Plaintiff proceeded in this action on the following claims as stated in the
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Third Amended Complaint: (1) retaliation in violation of the First Amendment claim against
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Defendants Lt. Goss, Lt. Gallagher, and Officer Langler; (2) deliberate indifference to his serious
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medical needs in violation of the Eight Amendment against Defendants PA Byers and Lt. Gallagher;
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and (3) violation of his rights to due process against Defendant Lt. Goss. (Docs. 31, 42, 47.)
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On January 8, 2015, Plaintiff filed a document entitled "Plaintiff's Opposition of U.S.
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Magistrate Judge Jennifer L. Thurston Findings and Recommendations Adopted By The Court On
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January 23, 2014 Dismissing Several of the Defendants And Request For Judicial Review Under
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Federal Rule of Civil Procedure Procedure [sic] 60(b)(1)." (Doc. 128.) Despite lapse of more than
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sufficient time, Defendants have not filed any opposition. The motion is deemed submitted. L.R.
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230(l).
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Rule 60(b) of the Federal Rules of Civil Procedure provides that A[o]n motion and upon such
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terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the
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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
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evidence that, with reasonable diligence could not have been discovered in time to move for a new
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trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by an opposing party; . . . or
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(6) any other reason justifying relief from the operation of judgment.@ Motions under Rule 60(b)
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"must be made within a reasonable time -- and for reasons (1), (2), and (3) no more than a year after
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the entry of the judgment or order or the date of the proceeding."
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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest
injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro,
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531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing
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reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both injury and
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circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted). Further,
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Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or different facts or
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circumstances are claimed to exist which did not exist or were not shown" previously, "what other
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grounds exist for the motion,” and “why the facts or circumstances were not shown" at the time the
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substance of the order which is objected to was considered.
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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 there
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is an intervening change in the controlling law,” and it “may not be used to raise arguments or present
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evidence for the first time when they could reasonably have been raised earlier in the litigation.”
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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)
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(internal quotations marks and citations omitted) (emphasis in original).
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In his motion, Plaintiff seeks reconsideration of a Findings and Recommendations, which
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issued on September 10, 2013, to dismiss Warden K. Allison, Chief Medical Officer A. Enenmoh, and
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Medical Director O. Beregovskaya for which he asserts an order adopting issued on January 23, 2014.
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(Doc. 128, at 1, 2:6-13.) However, the Findings and Recommendations that issued on September 10,
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2013 was vacated by an order that issued on November 18, 2013 which included Findings and
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Recommendations to allow Plaintiff to proceed on the Third Amended Complaint against all of the
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Defendants named therein other than Sgt. Anderson, which was adopted on January 7, 2013. (Docs.
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42, 47.) There is no order adopting that issued on January 23, 2014 in this action. Thus, there is
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neither a Findings and Recommendation that issued on September 10, 2013, nor an order adopting it
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that issued on January 23, 2014 to be reconsidered.
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Further, Plaintiff did not name any of the three persons against whom he now seeks to proceed
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as a defendant in the Third Amended Complaint -- Medical Director Beregovskaya was not named as
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a defendant in this action beyond the original complaint (Doc. 1); Warden Allison was not named as a
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defendant in this action beyond the First Amended Complaint (Doc. 18); and Chief Medical Officer
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Enenmoh was not named as a defendant in this action beyond the Second Amended Complaint (Doc.
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24). Thus, it was Plaintiff's decision not to pursue his claims against these individuals after receiving
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the applicable screening orders, rather than an order of this Court that terminated these persons from
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this action. Plaintiff argues that he did not present viable claims against these three persons through
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no fault of his own as he was unable to access the law library. (Doc. 128, p.3.) However, this
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argument does not provide explanation as the applicable standards for his claims were provided in
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each of the orders that screened his various pleadings.
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Plaintiff then morphs his motion to attack the rulings on Defendants' motion for summary
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judgment for Plaintiff's failure to exhaust available administrative remedies due to defense counsel's
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fraud, misrepresentation, or other misconduct under Rule 60(b)(3) asserting that: (1) defense counsel
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falsely supported the motion for summary judgment when he asserted under oath that Plaintiff did not
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present documents to submit his inmate appeals for Third Level review; (2) Plaintiff filed a motion
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under Rule 56(d) for additional discovery; and (3) on July 22, 2010; Plaintiff submitted a writ of
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mandate to the Warden at CSATF which put Warden Allison on notice of Plaintiff's claims of
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retaliation by subordinate prison staff, but that his efforts in this regard were thwarted due to
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"impermissible interference with the Plaintiff's litigation efforts." (Doc. 128, 3:22-5:6.)
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However, defense counsel did not submit his own declaration in support of the motion for
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summary judgment. (See Doc. 69.) Any challenge that Plaintiff had to the declarations submitted in
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support of the motion for summary judgment should have been made in Plaintiff's opposition, or in
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objection to the Findings and Recommendation thereon. Any challenges raised by Plaintiff either in
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his opposition to the motion for summary judgment or in his objections to the Findings and
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Recommendations to grant the motion regarding the sufficiency of the declarations submitted by
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Defendants in support of their motion were considered and addressed in the Findings and
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Recommendations and/or the order adopting. Plaintiff's cursory suggestion that the defense
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declarations were deficient in this motion is also insufficient to show that judicial error occurred.
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Plaintiff's motion for additional discovery in response to Defendants' motion for summary was
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properly denied since he made no showing that any discovery he sought would allow him to prevail.
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(See Doc. 114, F&R on MSJ, 18:14-19:6.) Finally, Plaintiff does not show that his assertion of
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submitting a writ of mandate to the Warden at CSATF qualifies as newly discovered evidence, nor
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that clear error was committed for not considering that which Plaintiff did not submit in opposition to
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the motion for summary judgment.
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Plaintiff further argues that the notice of filing "said petition" (presumably the writ of mandate
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which he now asserts he submitted to the Warden) occurred before Chief Medical Officer Enenmoh
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and Medical Director Beregovskaya filed their decision to partially grant Plaintiff's inmate appeal
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regarding being deprived of his orthopedic devices. (Id., at 5:7-11.) Plaintiff argues that this placed
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these two persons on notice of his claims of retaliation before they rendered their decision and that it
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gave "huge credence" to his claims that he had the orthopedic devices in his possession and that the
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correctional officers retaliated by depriving him of them. (Id., at 5:11-17.) Plaintiff argues that this
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entitles him to relief under Rule 60(b)(1), (b)(3), and (b)(6). (Id., at 5:18-25.) However, Plaintiff did
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not raise any such evidence in opposition to Defendants' motion for summary judgment, nor in his
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objections to the Findings and Recommendations that issued on November 18, 2013 which delineated
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the claims upon which this action proceeds, and he does not provide any showing that it could not
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reasonably have been raised earlier in the litigation. Marlyn Nutraceuticals, 571 F.3d at 880.
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In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this Court
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has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds
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the Order on the Findings and Recommendation and Dismissing Certain Claims and Defendants,
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which issued on November 18, 2013, which was adopted by order that issued on January 7, 2014 as
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well as the Findings and Recommendations on Defendants' motion for summary judgment which
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issued on November 19, 2014, and was adopted by order that issued on January 5, 2015 to be
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supported by the record and proper analysis.
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Accordingly, Plaintiff’s motion for reconsideration/judicial review, filed on January 8, 2015
(Doc. 128), is HEREBY DENIED and any objections based thereon are OVERRULED.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill
May 12, 2015
UNITED STATES DISTRICT JUDGE
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