Herrera v. Rouch

Filing 124

ORDER DENYING Motion for Reconsideration 118 , signed by District Judge Lawrence J. O'Neill on 7/10/15: The action shall remain closed. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA ,

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Plaintiff,

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CASE NO. 1:13-cv-00289-LJO-MJS (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(ECF No. 118)
ROUCH,

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Defendant.

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I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 7 & 17.) The action, now

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closed, proceeded against Defendant Rouch on Plaintiff’s Eighth Amendment

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inadequate medical care claim. (ECF No. 18.) Specifically, Plaintiff alleged that he

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suffered from chronic pain in his leg that worsened in cold weather, and that Defendant

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Rouch was deliberately indifferent to this serious medical need by refusing to provide

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thermal underwear. (ECF No. 17.)

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On August 19, 2014, Defendant filed a motion for summary judgment on the

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ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 81.) The motion

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advised Plaintiff of his obligation to file an opposition within twenty-one days. (Id.) On

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August 27, 2014, Plaintiff filed a motion for the appointment of an expert to oppose

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Defendant’s summary judgment motion and a motion for appointment of counsel. (ECF

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No. 84.) He did not timely file an opposition to Defendant’s motion or seek an extension

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of time to do so.

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On December 11, 2014, the Magistrate Judge assigned to the case denied

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Plaintiff’s motion for the appointment of counsel and motion for appointment of an

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expert. (ECF No. 103.) The Magistrate Judge ordered Plaintiff to file an opposition to the

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motion for summary judgment within twenty-one days. (Id.) Plaintiff failed to do so.

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Accordingly, on January 15, 2015, the Magistrate Judge issued findings and a

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recommendation to dismiss Plaintiff’s action for failure to obey a court order and failure

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to prosecute. (ECF No. 104.)

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On January 29, 2015, Plaintiff filed a motion for reconsideration of the findings

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and recommendation. (ECF No. 105.) On February 3, 2015, the Magistrate Judge took

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Plaintiff’s motion under advisement and afforded Plaintiff an opportunity to show cause

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why his time to oppose the summary judgment motion should be extended. Plaintiff filed

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his response on February 19, 2015. (ECF No. 109.) The motion for reconsideration was

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denied on February 24, 2015. (ECF No. 110). Thereafter, on March 6, 2015, the

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undersigned adopted the findings and recommendation in part and dismissed the action

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without prejudice for failure to obey a Court order and failure to prosecute. (ECF No.

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112).

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On April 13, 2015, Plaintiff filed a notice of appeal. (ECF No. 116.) The Ninth

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Circuit concluded the appeal was too insubstantial to warrant review and refused to allow

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the appeal to proceed. (ECF No. 121.)

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Before the Court is Plaintiff’s April 13, 2015 motion for reconsideration of the order

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adopting the findings and recommendations. (ECF No. 118.) Defendant opposes the

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motion. (ECF No. 119.) In reply, Plaintiff filed two declarations. (ECF Nos. 122, 123.) The

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matter is deemed submitted. Local Rule 230(l).

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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

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an 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

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

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(internal quotations marks and citation omitted).

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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.” Marlyn

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

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“A motion for reconsideration may not be used to raise arguments or present evidence

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

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Moreover, “recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

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requires that a party seeking reconsideration show that “new or different facts or

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

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prior motion, or what other grounds exist for the motion . . . .”

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III.

PARTIES ARGUMENTS

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Plaintiff asks that the action be reopened, that Defendant’s motion for summary

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judgment for failure to exhaust his administrative remedies be denied, that his motion for

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reconsideration and supporting declarations be construed as an opposition to the motion

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for summary judgment, that he be permitted to amend his complaint to add additional

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defendants, and that the Court proceed to the merits of his claims. He also asks that

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counsel be appointed and that the matter be referred for alternative dispute resolution.

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Plaintiff reiterates his argument, raised prior to the order dismissing this action,

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that he was unable to timely prosecute the action due to various medical concerns. He

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states that, since dismissal, his memory has been refreshed and he now can show that

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he did, in fact, exhaust his administrative remedies with respect to his claim. He attaches

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to his motion for reconsideration an exhibit purporting to show exhaustion of

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administrative remedies. He argues Defendant’s summary judgment motion was

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premature because discovery had not concluded. (ECF No. 118.)

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Defendant responds that Plaintiff’s motion for reconsideration is untimely, and the

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Court lacks jurisdiction to consider it in light of Plaintiff’s appeal. Defendant further points

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out that the action was dismissed for failure to obey a court order and failure to

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prosecute. Plaintiff has not presented any facts, circumstances, or law that would justify

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reconsideration of the dismissal of the action on those bases. (ECF No. 119.)

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In reply, Plaintiff filed two supporting declarations with numerous and lengthy

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supporting exhibits. The first declaration (ECF No. 122) argues that his motion for

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reconsideration was timely filed, apparently because Plaintiff previously filed a motion for

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reconsideration of a separate order issued by the Magistrate Judge. The second

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declaration (ECF No. 123) asks to withdraw the motion for reconsideration and replace it

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with the arguments raised in his declaration. Specifically, Plaintiff claims in his second

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declaration that he timely opposed Defendant’s motion for summary judgment, but that

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his opposition was not received by the Court because prison staff interfered with

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Plaintiff’s mail. Plaintiff claims that he did not previously raise this argument because he

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had forgotten about his timely and properly submitted opposition. He again asserts that

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he has a valid defense to the summary judgment motion and should be permitted to add

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additional defendants to this action.

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IV.

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ANALYSIS
In light of the dismissal of Plaintiff’s appeal as too insubstantial to warrant review,

his motion for reconsideration likely is moot.

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Even if it is not moot, it is without merit. The action was dismissed for Plaintiff’s

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failure to obey a court order and failure to prosecute – specifically, his failure to respond

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to Defendant’s motion for summary judgment. Plaintiff’s argument that he was prevented

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from timely responding due to medical issues was raised and addressed prior to

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dismissal of the action. Plaintiff presents no new arguments warranting relief.

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His claim that his timely opposition to the motion for summary judgment was

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interfered with by prison staff cannot be credited. In the nearly ten month period between

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the filing of Defendant’s motion for summary judgment and the filing of Plaintiff’s

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declaration on this issue, Plaintiff filed thirteen requests with the Court. None suggested

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that Plaintiff had attempted to oppose the summary judgment motion but was unable to

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do so due to misconduct of prison staff. Rather, Plaintiff consistently has argued that he

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was unable to oppose the motion due to medical concerns. Plaintiff’s belated claim that

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he was prevented from opposing the motion due to prison mail interference does not

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warrant reconsideration.

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The remaining relief requested by Plaintiff is outside the scope of a motion for

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reconsideration. The action is now closed. Plaintiff’s attempt to oppose the motion for

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summary judgment and amend his complaint, at this stage of the proceedings, will not

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be entertained. Similarly, appointment of counsel and referral to alternative dispute

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resolution are not available in this closed action.

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V.

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CONCLUSION
Based on the foregoing, Plaintiff’s motion for reconsideration (ECF No. 118) is

HEREBY DENIED. The action shall remain closed.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 10, 2015

UNITED STATES DISTRICT JUDGE
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