McColm v. State of California et al
Filing
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ORDER ADOPTING 85 Findings and Recommendations to DENY 83 Plaintiff's Motion Seeking Relief From, or Alterations to, the Judgment, signed by District Judge Dale A. Drozd on 7/18/2020. (Rivera, O)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICIA A. McCOLM,
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Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.
No. 1:14-cv-00580-NONE-JDP
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PLAINTIFF’S MOTION SEEKING RELIEF
FROM, OR ALTERATIONS TO, THE
JUDGMENT
(Doc. Nos. 83, 85)
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Plaintiff Patricia A. McColm is a former state prisoner proceeding pro se in this now-
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closed civil rights action brought under 42 U.S.C. § 1983. The matter was initially filed on April
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22, 2014. (Doc. No. 1.) The court screened and dismissed plaintiff’s initial complaint with leave
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to amend on February 26, 2015. (Doc. No. 12.) After being granted several extensions of time to
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do so extending over a period of more than two years, plaintiff finally filed an 80-page first
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amended complaint (FAC) on March 13, 2017. (Doc. No. 42.)
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In general, plaintiff complained in her FAC about treatment she allegedly endured while
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incarcerated at Central California Women’s Facility (CCWF) in Chowchilla, California. (See
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Doc. 47 at 2–5). Among other things, plaintiff alleged that she has mobility issues and requires a
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wheelchair due to multiple medical conditions from which she suffers including multiple
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sclerosis, which impacts her cognitive function. (Doc. No. 42 at 5.) Plaintiff alleged that officials
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at CCWF failed to accommodate her disability in violation of the Americans With Disabilities
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Act (ADA), failed to protect her from “extreme physical and emotion[al] abuse” at the hands of
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other inmates, and retaliated against her for her various complaints made about her treatment.
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(See Doc. 47 at 2–5.) On August 14, 2017, the then assigned magistrate judge issued findings and
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recommendations, reviewing the FAC in detail, and recommending that certain claims be
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dismissed without leave to amend, but that plaintiff be afforded another opportunity to amend to
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cure deficiencies noted with respect to other claims. (See generally Doc. 47.) The August 14,
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2017 findings and recommendations provided detailed instructions about how plaintiff could
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cure the numerous deficiencies of her FAC, including clear warnings that plaintiff must make
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efforts to allege facts linking specific named defendants to the “bad things that happened to her,”
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(id. at 6) as well as a warning that any amended complaint should be brief (id. at 18). After
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receiving a significant extension of time to do so (Doc. No. 49), plaintiff filed objections to the
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August 14, 2017 findings and recommendations. (Doc. No. 52.) On February 22, 2018, the
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previously assigned district judge adopted those findings and recommendations, dismissing
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certain of plaintiff’s claims with prejudice and other claims with leave to amend. (Doc. No. 53.)
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After again obtaining several extensions of time (Doc. Nos. 58, 60), plaintiff filed a
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second amended complaint (SAC). (Doc. No. 63.) Instead of abiding by the warnings previously
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given to her, however, plaintiff’s 121-page SAC added back allegations that had previously been
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dismissed, including 72 named defendants and 100 “Doe” defendants. (See Doc. No. 75 at 4–5.)
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On June 12, 2019, the newly assigned magistrate judge issued findings and recommendations,
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again reviewing the case history in detail, and recommending that: (a) plaintiff’s SAC be
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dismissed for failure to comply with federal pleading standards; (b) plaintiff not be afforded
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further leave to amend; and (c) the SAC be dismissed with prejudice. (Doc. No. 75.) Plaintiff
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filed objections to the June 12, 2019 findings and recommendations. (Doc. No. 80.) After
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considering the matter de novo in light of plaintiff’s objections, on September 11, 2019, the
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previously assigned district judge adopted the findings and recommendations in full and
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dismissed the case with prejudice based on plaintiff’s repeated failures to cure pleading
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deficiencies and to comply with court orders. (Doc. No. 81.)
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On October 8, 2019, plaintiff filed the pending motion seeking relief from, or alterations
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to, that judgment. (Doc. No. 83.) In her motion, which invokes Federal Rules of Civil Procedure
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59(e) and 60(b), plaintiff asserts that her underlying claims are not deficient, that dismissal with
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prejudice is inappropriate under the circumstances, including in light of her disability. (Id.)
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Plaintiff has attached to her motion several letters from physicians including one, dated August
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23, 2018, from a clinical professor of neurology who opines regarding the seriousness of the
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cognitive issues caused by plaintiff’s multiple sclerosis. (Doc. No. 86 at 5.) Among other
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objections, plaintiff objects to dismissal of her complaint “without leave to amend merely because
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of its length without analysis of any cause on the merits and without appointment of counsel
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recommended by Plaintiff’s physicians.” (Doc. No. 83 at 5.) She also requests appointment of
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counsel. (Doc. No. 83 at 3.)
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On January 17, 2020, the magistrate judge entered findings and recommendations,
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recommending that plaintiff’s motion seeking relief from, or alterations to, the judgment
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dismissing the case be denied. (Doc. No. 85.) Plaintiff was given an opportunity to object to the
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findings and recommendations within fourteen days and objected on January 30, 2020. (Doc. No.
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87.) In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this
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court has conducted a de novo review of this case, including all of the medical records provided
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by plaintiff. Having carefully reviewed the entire file, the court finds the January 17, 2020
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findings and recommendations to be supported by the record and proper analysis.
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Although plaintiff invokes both Federal Rules of Civil Procedure 59(e) and 60(b), she
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may take advantage of the somewhat more lenient standard applicable under Rule 59 because she
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filed her motion within 28 days of entry of judgment. See Fed. R. Civ. P. 59(e); (compare Doc.
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No. 82 (filed Sep. 11, 2019), with Doc. No. 83 (filed Oct. 8, 2019)). Nonetheless, a motion for
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such relief “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.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en
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banc) (internal quotation marks and citations omitted). Altering or amending a judgment under
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Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of finality and
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conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
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(9th Cir. 2000). Plaintiff has identified no such unusual or extraordinary circumstances here. The
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court is sympathetic to plaintiff’s medical condition. Nonetheless, the court cannot find that the
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previously assigned district judge clearly erred by adopting the recommendation that her SAC be
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dismissed with prejudice in light of the numerous warnings regarding the pleading of her claims
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and the extensions of time plaintiff received to cure the noted deficiencies in her earlier
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complaints. Moreover, the medical record most relevant to plaintiff’s pending motion – the
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August 23, 2018 letter mentioned above – is not new, and cannot constitute newly discovered
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evidence. Relatedly, although plaintiff renews her request for counsel in her October 8, 2019
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motion, this issue has been addressed numerous times by this court, including by way of a June
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11, 2019 order issued by the assigned magistrate judge. (Doc. No. 74.) While the August 23,
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2018 doctor’s letter is relevant to the appointment of counsel issue insofar as it represents a
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medical opinion that plaintiff “needs to have court appointed counsel to help prepare a more
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logical, concise, and complete document according to the court’s instructions,” (Doc. No. 86 at
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5), this opinion does not overcome the practical reality, which has been explained to plaintiff, that
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the court cannot compel an attorney to represent her in this civil action. (See Doc. 74 at 2
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(providing citations).) The assigned magistrate judge reasonably concluded that this case did not
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warrant taking the extraordinary step of seeking pro bono counsel. (Id.)
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Accordingly:
1. The findings and recommendations issued by the magistrate judge on January 17, 2020
(Doc. No. 85) are ADOPTED IN FULL; and
2. Plaintiff’s motion to alter the judgment, or obtain relief from it (Doc. No. 83), is denied.
IT IS SO ORDERED.
Dated:
July 18, 2020
UNITED STATES DISTRICT JUDGE
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