Bejarano v. Allison et al

Filing 36

ORDER Denying Plaintiff's Motions for Reconsideration 23 29 ; ORDER Finding Plaintiff's Motion to Amend Complaint as Moot 26 per Order Adopting in Part 35 , signed by District Judge Lawrence J. O'Neill on 7/11/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOB BEJARANO,

CASE NO: 1:11-cv-00589-LJO-GBC (PC)

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTIONS
FOR RECONSIDERATION

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v.
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Docs. 23, 29
KATHLEEN ALLISON, et al.,

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Defendants.
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ORDER FINDING PLAINTIFF’S MOTION TO
AMEND COMPLAINT AS MOOT PER
ORDER ADOPTING IN PART
/ Docs. 26, 35

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I. Procedural Background and Motion to Amend Complaint

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On April 12, 2011, Plaintiff Bob Bejarano (“Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On May 31, 2011,

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Plaintiff filed a second case in this district, Bejarano v. Allison, 1:11-cv-00873-OWW-DLB. In both

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cases, Plaintiff alleged claims against various Defendants, namely O. Best, Sergeant, Facility C, at

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California Substance Abuse Treatment Facility, Corcoran (“CSATF”), and M. Bejarano, Sergeant,

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at CSATF. On August 29, 2011, the Court consolidated the cases. Doc. 9. On December 19, 2011,

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and April 29, 2012, Plaintiff filed a Motion for Reconsideration and a substantively identical second

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Motion for Reconsideration of the Court’s consolidation order. Docs. 23, 29.

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On February 8, 2012, Plaintiff filed a Motion to Amend his complaint in conjunction with

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filing his Second Amended Complaint. Doc. 27. On June 28, 2012, the Court issued an Order

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Adopting, in Part, finding that Plaintiff’s second amended complaint states a cognizable claim for

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First Amendment retaliation as to Defendants O. Best and M. Bejarano. Doc. 35. Thus, Plaintiff’s

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motion to amend his complaint, filed in conjunction with filing his Second Amended Complaint, is

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MOOT for review.
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II. Legal Standard for Rule 60(b) Motion for Reconsideration and Consolidation Order

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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The

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Rule permits a district court to relieve a party from a final order or judgment on grounds of: “(1)

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mistake, inadvertence, surprise, or excusable neglect . . . (3) fraud . . . by an opposing party . . . or

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(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration must

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be made within a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable remedy

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to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party “must demonstrate both

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injury and circumstances beyond his control . . . ” Id. Local Rule 230(j) requires Plaintiff to show

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“what new 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.” “A motion for

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reconsideration should not be granted, absent highly unusual circumstances, unless the district court

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is presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law,” and it “may not be used to raise arguments or present evidence for

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

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

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in original).

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Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, “[i]f actions before the court

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involve a common question of law or fact, the court may: (1) join for hearing or trial any or all

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matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid

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unnecessary cost or delay.” In exercising the Court’s discretion, the Court “weights the saving of

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time and effort consolidation would produce against any inconvenience, delay, or expense that it

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would cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984). Consolidation may occur

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upon motion or sua sponte. In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987).

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III. Analysis

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In the Court’s consolidation order, the Court found that the present action, Case No. 1:11-cv-

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00589-OWW-GBC contained common questions of law and fact as to the separate action, Case No.

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1:11-cv-00873-OWW-DLB. In both actions, Plaintiff complained of being placed on contraband
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surveillance watch (“CSW”) from February 17, 2010 to February 20, 2010, in violation of the Eighth

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Amendment. Plaintiff named the same thirteen defendants in both actions. Plaintiff alleged being

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placed on CSW a second time in retaliation for complaining about his first CSW placement, which

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is the only remaining claim in the present action. In the interest of judicial economy, the Court found

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that these two actions should be consolidated.

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In Plaintiff’s motions for reconsideration, Plaintiff contends that separate trials are necessary

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as guaranteed by the Sixth and Fourteenth Amendments. Docs. 23, 29. First, Plaintiff’s argument as

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to the Sixth and Fourteenth Amendments only applies to criminal cases. Crawford v. Washington,

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541 U.S. 36 (2004); Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009). Second, this Court

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found a cognizable claim for First Amendment retaliation against Defendants Best and Bejarano,

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who are parties to this case. Doc. 35. Thus, Plaintiff’s argument for a separate trial lacks merit, and

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the Court DENIES Plaintiff’s motions to reconsider this Court’s order consolidating cases.

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IV. Conclusion

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion to amend his complaint, filed in conjunction with filing his Second

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Amended Complaint, is MOOT for review per the Court’s Order Adopting, in Part;

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and

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2.

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Plaintiff’s motions for reconsideration of the Court’s order consolidating cases is
DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

July 11, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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