Blacher v. Johnson et al

Filing 35

ORDER Denying Motion For Reconsideration And Resolving Motion For Clarification (Docs. 31 , 32 ), signed by Magistrate Judge Gary S. Austin on 3/27/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARLON BLACHER,

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Plaintiff,

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vs.

1:12-cv-1159-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION AND RESOLVING
MOTION FOR CLARIFICATION
(Docs. 31, 32.)

S. JOHNSON, et al.,

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Defendants.

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I.

BACKGROUND

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Marlon Blacher (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. On February 26, 2014, the court dismissed this case for

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failure to exhaust administrative remedies and entered judgment. (Docs. 29, 30.)

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On March 24, 2014, Plaintiff filed a motion to alter or amend the judgment, which the

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court construes as a motion for reconsideration of the court’s order dismissing the case. (Doc.

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31.) Plaintiff also filed a motion for clarification of the court’s order. (Doc. 32.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

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

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

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an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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

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motion, or what other grounds exist for the 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, committed

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

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

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Plaintiff’s Motion

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Plaintiff requests reconsideration of the court’s finding in the court’s order of February

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26, 2014, that he failed to exhaust his available administrative remedies for his claim against

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defendant Chief Deputy Warden S. Johnson (“Johnson”) before filing suit. Plaintiff argues that

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he exhausted his remedies because (1) his appeal addressed the unclothed body searches at

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issue in his Complaint, (2) he completed the appeals process through the third level of review,

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and (3) the third level response informed him that “[t]his decision exhausts the administrative

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remedy available to the appellant within CDCR.” (Doc. 31 at 2:12-13.) Plaintiff also argues

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that he complied with the CDCR’s appeals procedures because when he was dissatisfied with

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the second level response, he proceeded to file an appeal at the third level in compliance with

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Cal.Code Regs. tit.15 § 3084.2(d) which states: “If dissatisfied with the second level response,

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the appellant may submit the appeal for a third level review.” (Id. at 3:22-25.) Plaintiff also
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argues that defendant Johnson was involved in the issue of unclothed body searches because

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defendant Johnson’s subordinates conducted the searches, and defendant Johnson denied

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Plaintiff’s appeal at the second level of review, failing to provide Plaintiff with a remedy for a

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clear violation of the CDCR’s regulations concerning body searches, which made defendant

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Johnson a co-conspirator in the violation. Plaintiff argues that there is no requirement that he

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start over with the grievance process to address defendant Johnson’s decision at the second

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level of review.

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Discussion

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Plaintiff’s misunderstands the court’s ruling, and his arguments are without merit. The

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court found that Plaintiff failed to exhaust his remedies for his claim against defendant Johnson

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because Plaintiff’s claim against defendant Johnson arose after Plaintiff filed his Appeal

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number COR-11-02175 (“Appeal”) and therefore could not have been part of Plaintiff’s Appeal

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when it was first submitted. The CDCR’s appeals process provides that “[a]dministrative

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remedies shall not be considered exhausted relative to any new issue, information, or person

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later named by the appellant that was not included in the originally submitted CDCR Form

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602.”

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unclothed body searches which took place before the appeal was submitted.

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Complaint, Doc. 1 at 6.)

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improperly responded to his Appeal at the second level of review -- arose after the Appeal was

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submitted. (Id. at 7, 9 ¶F.) Plaintiff was not permitted to add a new issue to his appeal after it

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was submitted.

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Plaintiff would have to submit a new appeal after his claim against defendant Johnson arose,

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and complete the process for that claim. There is no evidence that Plaintiff did so.

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CalCode Regs. tit. 15, § 3084.2(a)(3( (2011). Plaintiff’s Appeal concerned improper
(Exhs. to

Plaintiff’s claim against defendant Johnson – that she (Johnson)

For Plaintiff to exhaust his remedies with respect to defendant Johnson,

Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. Therefore, Plaintiff’s motion for reconsideration shall be denied.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed on March 24, 2014, is DENIED; and
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2.

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This order also resolves Plaintiff’s motion for clarification, filed on March 24,
2014.

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IT IS SO ORDERED.
Dated:

March 27, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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