Green v. Delgado et al

Filing 82

ORDER DENYING Plaintiff's 77 Request for Reconsideration signed by District Judge Lawrence J. O'Neill on 11/16/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC W. GREEN,

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Plaintiff,
v.
DELGADO, et al.,

Case No.: 1:14-cv-00297-LJO-JLT (PC)
ORDER DENYING PLAINTIFF'S REQUEST
FOR RECONSIDERATION PER FED. R. CIV. P.
59(e) & 60(b)
(Doc. 77)

Defendants.

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Plaintiff, Eric W. Green, is a state prisoner proceeding in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint in this action on March 2, 2014.

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(Doc. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. '

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636(b)(1)(B) and Local Rule 302. Plaintiff’s claims in this action involve an incident of alleged

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excessive force while he was being moved to a new cell.

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The Magistrate Judge issued a Findings and Recommendations to grant defense motions for

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summary judgment, finding Plaintiff’s action barred by Heck v. Humphrey, 512 U.S. 477 (1994),

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Edwards v. Balisok, 520 U.S. 641, 648 (1997), and their progeny. (Doc. 72.) The Findings and

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Recommendations was served on the parties on September 21, 2015 and contained notice for filing

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objections to the Findings and Recommendations. (Id.) Plaintiff filed timely objections in which he

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argued along the lines asserted in his opposition to the motion that he is not barred from pursuing this

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action since his is no longer in custody and that while he did not dispute that he initially resisted

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Defendants’ attempts to restrain him, his claim was based on excessive force applied after he had

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become compliant. (Doc. 74.) The order adopting the Findings and Recommendations issued on

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October 8, 2015 and found that this action was barred by Heck and Edwards; judgment was entered

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that same day. (Docs. 75, 76.) On October 18, 2015, Plaintiff filed a motion for reconsideration

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seeking relief from judgment under Federal Rules of Civil Procedure1 59(e) and 60(b). (Doc. 77.)

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Rule 59(e) allows a judgment to be altered or amended at the Court’s discretion (1) if such

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motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such

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motion is necessary to present newly discovered or previously unavailable evidence; (3) if such

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motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening

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change in controlling law. McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc)

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(per curiam). Other unusual circumstances may allow for alteration or amendment of a judgment such

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as correction of a clerical or typographical error. See id, citing Molnar v. United Techs. Otis Elevator,

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37 F.3d 335, 337-38 (7th Cir.1994). However, Rule 59(e) is abused when used to “raise arguments or

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present evidence for the first time when they could reasonably have been raised earlier in the

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litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000).

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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
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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The Federal Rules of Civil Procedure will hereinafter be referred to as ARule *.@ Any reference to other statutory
authorities shall so indicate.

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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.
“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 Plaintiff’s motion, he presents evidence, for the first time, that the good time credits which

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he lost as a result of the incident in question have been reinstated. (Doc. 77, pp. 4, 9.) Plaintiff and his

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counsel state regret for not having raised this evidence earlier, but assert that counsel only

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serendipitously became aware that the credits had been restored when he was researching an issue for

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possible appeal and did not previously notice this evidence since Plaintiff’s time credit calculations for

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his 17 years of incarceration span nearly 3,400 pages. (Doc. 77, at p. 4.) Plaintiff further argues that

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defense counsel was in the best position to be aware of the reinstatement and so should not have

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argued that this action was barred by Heck, Edwards, and their progeny. (Id.)
In opposition, Defendants2 present evidence and argue that the documents which show

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Plaintiff’s credits have been reinstated were produced in discovery and received by Plaintiff

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approximately two months prior to the date Defendants’ motion for summary judgment was filed.

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(Doc. 80-1, ¶ 4.) Defendants’ evidence further shows that the credits were reinstated following a

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Defendants Delgado, Gonzales, and Ramirez filed an opposition (Doc. 80), which Defendant Ortega joined (Doc. 81).

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period of good behavior and not by overturning Plaintiff’s finding of guilt under the RVR pertaining to

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the incident in question. (Id.) Defendants also present evidence that the Heck bar was raised as an

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affirmative defense and discovery was conducted thereon, though Plaintiff’s counsel did not question

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any Defendant(s) as to its application in their depositions. (Doc. 80, 4:3-5:3; Doc. 80-1, ¶ 5.)

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Plaintiff’s untimely notice of evidence that showed his good time credits had been restored is

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insufficient to support a grant of reconsideration as it clearly could and should reasonably have been

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raised in opposition to Defendants’ motion for summary judgment. Marlyn Nutraceuticals, Inc., 571

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F.3d at 880.

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Further, even if evidence of restoration of Plaintiff’s good time credits is considered, it does

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not suffice to overcome the disposition of the case. To prevail, Plaintiff must prove that “the

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conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by a federal

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court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck at 487-88. "A claim for damages

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bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable

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under § 1983." Id. at 488. This "favorable termination" requirement has been extended to actions

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under § 1983 that, if successful, would imply the invalidity of prison administrative decisions which

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result in a forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). Since

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the 61 days of good time credits which Plaintiff forfeited as a result of the guilty RVR finding were

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restored merely for a period of Plaintiff’s good behavior (see Doc. 80-2 ¶¶4-6 & p. 4) such restoration

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does not meet the “favorable termination” requirement to reverse the dispositive grant of summary

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judgment.

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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 both the Findings and Recommendation upon which this action was found to be barred by Heck v.

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Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 648 (1997) and their progeny

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(Doc. 72) and the Order Adopting it (Doc. 75) which resulted in dismissal of this action and entry of

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judgment to be supported by the record and proper analysis.

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Accordingly, Plaintiff’s motion for reconsideration seeking relief from judgment, filed on
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October 18, 2015 (Doc. 77), is HEREBY DENIED and any objections based thereon are

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OVERRULED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

November 16, 2015

UNITED STATES DISTRICT JUDGE

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