Lopez v. Berkebile et al

Filing 14

ORDER DENYING 13 Plaintiff's Motion for Reconsideration Pursuant to Rule 60(b)(6) signed by Chief Judge Lawrence J. O'Neill on 8/10/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GILFREDO LOPEZ,

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Plaintiff,
v.
D. BERKBILE, et al.,

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Defendants.

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Case No.: 1:14-cv-01003-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION PURSUANT TO RULE
60(b)(6)
(ECF No. 13)

Plaintiff Gilfredo Lopez (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff initiated this action on June 16, 2014.

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I.

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On January 28, 2015, the Magistrate Judge issued findings and recommendations that (1)

Background

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Plaintiff’s claims against staff at USP Big Sandy and USP Hazelton be dismissed, without prejudice,

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based on improper venue; and (2) this action be dismissed, with prejudice, for failure to state a claim

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upon which relief may be granted against Warden Paul Copenhaver, the Executive Staff,

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Administrative Remedy Coordinator K. Rodriguez, Unit Manager Gardea, Case Manager Coles,

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Counselor Scott, Counselor Lyons, and other unknown staff at USP Atwater. The Findings and
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Recommendations were served on Plaintiff and contained notice that any objections were to be filed

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within fourteen (14) days after service. (ECF No. 9.) On March 2, 2015, the Court granted Plaintiff a

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thirty-day extension of time to file his objections. (ECF No. 11.) More than thirty days passed and no

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objections were filed.

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On April 14, 2015, the Court conducted a de novo review of the case and the file, and adopted

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the findings and recommendations in full. (ECF No. 12.) The Court dismissed the claims against staff

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at USP Big Sandy and USP Hazelton, without prejudice, based on improper venue, and otherwise

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dismissed the action for failure to state a claim upon which relief may be granted. (Id. at 2.)
Currently before the Court is Plaintiff’s motion for reconsideration pursuant to Federal Rule of

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Civil Procedure 60(b)(6), dated December 17, 2015. (ECF No. 13.)

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II.

Motion for Reconsideration Pursuant to Rule 60(b)(6)

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order for

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any reason that justifies relief. Rule 60(b)(6) “is to be ‘used sparingly as an equitable remedy to

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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) (quoting Latshaw v. Trainer Wortham & Co.,

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Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). The moving party “must demonstrate both injury and

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circumstances beyond his control.” Latshaw, 452 F.3d at 1103. In seeking reconsideration of an order,

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Local Rule 230(j) requires a party to show “what new or different facts or circumstances are claimed

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to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for

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the motion.”
“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the ... court is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &

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Co., 571 F.3d 873, 880 (9th Cir.2009), 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 considered

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by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131

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(E.D.Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J.1992)).

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In his motion, Plaintiff contends that on March 26, 2015, a few days before his objections were

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due, he unexpectedly had major surgery, and for a time was ill and on medications as a result of the

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surgery. (ECF No. 13, p. 2.) He contends that these matters prevented him from filing timely

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objections to the findings and recommendations. Plaintiff states that had he had an opportunity, he

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would have objected that his complaint allegations sufficiently stated a claim that the prison officials

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at USP Atwater impeded his access to the courts regarding his claims of being assaulted at USP

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Hazelton, in violation of his First Amendment rights. (Id. at 5.) Plaintiff argues that the officials at

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USP Atwater prevented him from bringing claims regarding being assaulted at USP Hazelton, by

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stating that they did not have his inmate complaints, and by not assisting him in obtaining his

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complaints filed while he was housed at USP Hazelton. (Id. at 5-6.) Plaintiff argues that the failure to

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find that he stated a claim, and the denial of leave to amend, was an abuse of discretion, clear error,

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and manifest injustice.

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Contrary to Plaintiff’s arguments, the Court finds no grounds for relief or reconsideration here.

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Plaintiff is correct that inmates have a fundamental constitutional right of access to the courts. Lewis v.

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Casey, 518 U.S. 343, 346 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). Specifically,

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“prisoners have a right under the First and Fourteenth Amendments to litigate claims challenging their

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sentences or the conditions of their confinement to conclusion without active interference by prison

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officials.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011).

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That said, inmates are not entitled to a specific type of grievance process. See Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a

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specific prison grievance procedure.”). In order to allege an access-to-courts claim, the plaintiff must

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show an actual injury in the form of a failure to access the courts for a non-frivolous claim. Lewis v.

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Casey, 518 U.S. 343, 349–53 (1996) (an access-to-courts claim requires plaintiff to show that

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defendant’s conduct caused actual injury to a non-frivolous legal claim). Thus, to bring a claim, the

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plaintiff must have suffered an actual injury by being shut out of court. Christopher v. Harbury, 536

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U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips, 588 F.3d at 655.

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Plaintiff’s allegations failed to state a claim for denial of right of access to the courts. He
alleged that he made numerous filings at USP Hazelton, prior to being transferred to USP Atwater in
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October 2012. He inquired of various officials at USP Atwater regarding continuing to exhaust his

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administrative remedies regarding the assault complained about at USP Hazelton. Counselor Scott and

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Administrative Remedy Coordinator K. Rodriguez informed Plaintiff that there was nothing in

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Plaintiff’s file regarding any filings at USP Hazelton, and that they were either not tracked because

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they were informal resolutions, or were not recorded. Ms. Rodriguez also asserted that she contacted

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USP Hazelton staff on Plaintiff’s behalf to inquire about the filings, but they were nowhere in the

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record. Counselor Lyons further informed Plaintiff that the filings were never logged or answered, and

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that the filings were the responsibility of the USP Hazelton staff. Warden Copenhaver at USP Atwater

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told Plaintiff to continue to file his administrative remedies by going through the proper chain of

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command.
Plaintiff’s allegations, taken as true and given every reasonable inference, do not state a claim

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against any of the USP Atwater defendants for interfering with Plaintiff’s access to the courts in

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violation of the First Amendment. Plaintiff takes issue with the manner in which the USP Atwater

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staff assisted him with tracking and obtaining the grievances filed at USP Hazelton. But the prison

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internal grievance procedure does not create any constitutional right. If Plaintiff filed a claim in court

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against the staff at USP Hazelton regarding the alleged assault there, the availability of the grievance

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procedure would be relevant to whether Plaintiff could proceed without exhausting his claims through

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the prison procedure. But, even assuming there was some fault in the manner the staff at USP Atwater

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assisted Plaintiff with tracking and obtaining his grievances previously filed at USP Hazelton, a faulty

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grievance procedure alone does not state an independent claim. Plaintiff has not alleged that the

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actions of the staff at USP Atwater resulted in any inability to pursue a non-frivolous claim in court.
Moreover, based on the affirmative allegations made, the deficiencies of this complaint cannot

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be cured by amendment. Therefore, the Court did not err in declining to grant Plaintiff any further

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leave to amend.

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III.

Conclusion and Order

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For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motion for

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reconsideration pursuant to Rule 60(b)(6), dated December 17, 2015 (ECF No. 13), is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

August 10, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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