Smith v. Allison et al

Filing 142

ORDER Denying Plaintiff's Requests for Review/Reconsideration of Rulings 129 , 130 , 131 , signed by District Judge Lawrence J. O'Neill on 5/13/15. (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 REQUESTS
FOR REVIEW/RECONSIDERATION OF
RULINGS
(Docs. 129, 130, 131)

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 that were

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cognizable in the Third Amended Complaint: (1) retaliation in violation of the First Amendment

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claim against Defendants Lt. Goss, Lt. Gallagher, and Officer Langler; (2) deliberate indifference to

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his serious medical needs in violation of the Eight Amendment against Defendants PA Byers and Lt.

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Gallagher; and (3) violation of his rights to due process against Defendant Lt. Goss. (Docs. 31, 42,

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47.)

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On July 22, 2014, Defendants Goss and Gallagher filed a motion for summary judgment based

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on Plaintiff's failure to exhaust available administrative remedies prior to filing suit. (Doc. 69.) On

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November 19, 2014, the Magistrate Judge assigned to this case issued a Findings and

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Recommendation to grant the motion in part and deny in part and allowed thirty days for the filing of

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objections. (Doc. 114.) Plaintiff filed objections. (Doc. 125.) An order issued on January 5, 2015

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adopting the Findings and Recommendations. (Doc. 126.) On March 16, 2015, Plaintiff filed a
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document submitting two documents that he asserts were not forwarded to the Court when he

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originally submitted them for mailing to prison staff. (Doc. 129.) These documents were entered on

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March 16, 2015 on the docket as Documents 130 and 131 and are objections to various orders that

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have issued in this action. Defendants have not responded to either of these documents. Since they

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are objecting to prior orders, these documents are properly construed as motions for reconsideration.

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The motions are deemed submitted. L.R. 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 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

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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).
In Document 130, Plaintiff complains that the Findings and Recommendation on the motion

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for summary judgment filed by Defendants Gallagher and Goss did not address his due process claims

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against Defendant Gallagher. However, Plaintiff was not found to have stated a cognizable claim due

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process claim against Defendant Gallagher in this action. (Docs. 42, 45.) Further, Plaintiff did not

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raise any objection to the Findings and Recommendations that was adopted in full and upon which this

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action proceeds. (See Docs. 42, 45, 47.) Since the screening Findings and Recommendations, which

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issued on November 18, 2013, and the Order Adopting, which issued on January 7, 2014, were

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dispositive as to any due process claim that Plaintiff is now attempting to assert against Defendant

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Gallagher, Plaintiff's objection and any request for reconsideration thereof, which under the prison

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mailbox rule are deemed filed as of the date Plaintiff signed it, January 28, 2015, are untimely since

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they were filed after lapse of over a year. Fed. R. Civ. Pro. 60(c)(1).

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In Document 131, Plaintiff seeks reconsideration of both the Findings and Recommendations,

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which recommended Defendant Gallagher's motion for summary judgment be granted, that Defendant

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Goss' motion as to Plaintiff's retaliation claim be granted, and that it be denied as to Plaintiff's due

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process claim against Defendant Goss (Doc. 114), as well as the Order adopting it (Doc. 126). In this

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motion, Plaintiff argues that the Magistrate Judge's application of the law was incorrect and repeats

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arguments that he put forth in opposition to the motion for summary judgment. Plaintiff's

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disagreement with the Findings and Recommendations and Order Adopting, coupled with

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regurgitation of his oppositional arguments does not show newly discovered evidence, commission of

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clear error, or an intervening change of controlling law.

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Plaintiff further argues that a petition for writ of mandate that he filed in state court showed

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that prison officials were aware of, and thus on notice of, his claims. (Doc. 131, 7:9-20.) However,

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Plaintiff neither asserts, nor shows that his writ is newly discovered evidence, nor why he did not

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present it with his opposition to the motion for summary judgment. Further, even if his writ qualified

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as newly discovered evidence, proper exhaustion of available administrative remedies "demands

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compliance with an agency=s deadlines and other critical procedural rules because no adjudicative

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system can function effectively without imposing some orderly structure on the course of its
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proceedings.@ Woodford v. Ngo 548 U.S. 81, 91 (2006). Filing a writ of mandate in state court is not

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part of CDCR's procedures for inmate appeals. See Cal. Code Regs. tit. 15, § 3084, et sec.

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Finally, Plaintiff objects to the striking of ". . . orders issued on November 18th (twice) 2014."

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(Id., at 7:21-8:4.) Plaintiff argues that these "orders were two Amended Complaint issued to the

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Plaintiff alongside her Honor's Second Amended Findings and Recommendations" and that they are

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official records and necessary for appeal purposes. (Id.) However, no orders were issued on

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November 18, 2014 in this action and no amended complaints have ever been "issued to Plaintiff" by

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anyone in this court. It appears that, since in this motion Plaintiff takes umbrage with the orders

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issued on Defendant Goss and Gallagher's motion for summary judgment, Plaintiff may have intended

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to object to the striking of the original Findings and Recommendations on that motion that issued on

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October 17, 2014 (Doc. 108) and the amended one that issued on November 19, 2014 (Doc. 113).

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However, as was noted in the Order Adopting the Second Amended Findings and Recommendations

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on the motion for summary judgment, the original and amended Findings and Recommendations were

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stricken because they contained typographical errors. (Doc. 126, 1:19-24, 2:3-7.) It is the Second

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Amended Findings and Recommendations, that issued on November 19, 2014 (Doc. 114) which was

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adopted in this action that contains the analysis which was adopted by this Court and upon which both

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Defendant Gallagher and Plaintiff's retaliation claim against Defendant Goss were dismissed from this

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action. (Doc. 126.)

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Plaintiff has not shown any new or different facts or circumstances, newly discovered

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evidence, commission of clear error, or an intervening change of law to support either of his motions

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for reconsideration. Plaintiff=s mere disagreement with the Court=s rulings on screening and on the

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motion for summary judgment filed by Defendants Gallagher and Goss, which is all that is shown in

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the instant motion, is not grounds for reconsideration.

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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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both the Findings and Recommendations and Orders Adopting that Plaintiff objects to in his motions

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were supported by the record and proper analysis.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s objections/motions for reconsideration,
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filed on March 16, 2015 (Docs. 130, 131), are DENIED and any objections based thereon are

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OVERRULED.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

May 13, 2015

UNITED STATES DISTRICT JUDGE

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