Glass v. Gregory et al

Filing 58

ORDER denying Motion for New Trial signed by District Judge Ralph R. Beistline on 7/8/2016. (Lundstrom, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DONALD GLASS,
Case No. 1:14-cv-01703-RRB
Plaintiff,
ORDER DENYING MOTION
FOR NEW TRIAL

vs.
A. GREGORY, et al.,
Defendants.

I.

PENDING MOTIONS
At Docket 52 Plaintiff Donald Glass filed a motion to vacate the judgment granting

summary judgment in favor of Defendants A. Gregory and S. Duran. Defendants have
opposed the motion,1 and Plaintiff has filed a supplemental declaration2 and a reply.3 At
Docket 56 Plaintiff has moved for an extension of time to file his Reply to Defendants’
Opposition. The Court having determined that oral argument would not materially assist
the Court in resolving the issue presented, the matters are submitted for decision on the
moving and opposing papers without oral argument.4

1

Docket 53.

2

Docket 54.

3

Docket 55.

4

LR 230(I).

ORDER DENYING MOTION FOR NEW TRIAL
Glass v. Gregory, 1:14-cv-01703-RRB – 1

II.

APPLICABLE RULE/STANDARD OF REVIEW
Rule 59 provides two separate types of relief: (1) for a new trial, where there has

been a trial either by jury or bench without a jury; or (2) to alter or amend a judgment, which
applies to any final judgment, whether or not entered as a result of a trial, e.g., a final
judgment entered after a motion to dismiss under Rule 12(b) or grant of summary judgment
under Rule 56.5 A motion for a new trial or to alter/amend a judgment must be brought
within 28 days of entry of the judgment.6 A motion to reconsider is treated as a motion
under Rule 59(e) if it is filed within 28 days after entry of judgment, otherwise it is treated
as a motion brought under Rule 60(b).7 Judgment was entered on April 12, 2016. Plaintiff’s
motion is dated May 7, 2016. Applying the “mail-box rule,” Plaintiff’s motion was brought
within 28 days and is governed by Rule 59.
In general, a new trial may be granted where an error occurs at trial that, if not
corrected, will result in a miscarriage of justice: (1) the verdict is contrary to the clear weight
of the evidence;8 (2) verdict based upon false or perjurious evidence;9 (3) misconduct by

5

Fed. R. Civ. P. 59.

6

Fed. R. Civ. P. 59(b), (e).

7

American Ironworks & Erectors, Inc. v. North Am. Const. Corp., 248 F.3d 892,
898–99 (9th Cir. 2001).
8

Graves v. City of Coeur d’Alene, 339 F.3d 828, 839 n. 14 (9th Cir. 2003);

9

Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1248 (9th Cir. 1998)

ORDER DENYING MOTION FOR NEW TRIAL
Glass v. Gregory, 1:14-cv-01703-RRB – 2

a party that permeates the proceeding sufficiently to provide conviction that jury was
influenced by passion or prejudice; 10 or (4) a prejudicial error in instructing the jury.11
Court may grant relief under Rule 59(e) under limited circumstances: (1) an
intervening change of controlling authority; (2) new evidence has surfaced; or (3) the
previous disposition was clearly erroneous and, if uncorrected, would work a manifest
injustice.12
To justify an amendment to a judgment based upon newly discovered evidence, the
movant must show that the evidence was discovered after the judgment, that the evidence
could not be discovered earlier through due diligence, and that the newly discovered
evidence is of such a magnitude that had the court known of it earlier, the outcome would
likely have been different.13
III.

DISCUSSION
Glass predicates his motion on seven points: (1) mistake; (2) error of fact or law;

(3) discovery misconduct by Defendants; (4) denial of a continuance under Rule 56(d) was
an abuse of discretion; (5) a material issue of fact exists as to when Glass received the file
on his administrative appeal; (6) erroneously granted summary judgment while discovery

10

Kehr v. Smith Barney, 736 F.2d 1283, 1286 (9th Cir. 1984)

11

White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002).

12

See Circuit City Stores v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005); 389
Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999); see generally 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2810.1
(2d ed.).
13

Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003).

ORDER DENYING MOTION FOR NEW TRIAL
Glass v. Gregory, 1:14-cv-01703-RRB – 3

was still pending; and (7) alternatively, that the Court grant him a 30-day extension to
obtain his legal materials that were confiscated on April 15, 2016.
The Court entered judgment in favor of Defendants on the basis that Glass had not
properly exhausted his administrative remedies. The Court has carefully reviewed the
moving and opposing papers and agrees with Defendants that Glass has not met the
standards for granting Glass a new trial. Glass does nothing more than rehash arguments
the Court has already rejected.
In particular, Glass has not provided any evidence as to the date he received the
second level’s denial of his inmate appeal in KVSP-0-10-02369 or why, after he received
it, he did not appeal to the third level. Because these facts were peculiarly within Glass’s
knowledge, no amount of discovery from the Defendants would have revealed either fact.
Nor, because the information in his files was available to him at the time he opposed
Defendants’ summary judgment motion, would granting him an extension of time within
which to reply to Defendants’ opposition to the motion before the Court assist Glass. If
Glass received the second level rejection after he filed this action and then exhausted his
administrative remedies, because dismissal of this case is without prejudice,14 he may still
be entitled to relief by filing a new action.
With respect to the alleged error of law, it is the province of the Court to determine
what is law. The scope and applicability of the PLRA is a matter of law, the effect of which
on the undisputed facts before the court is decided by the court. Contrary to the argument

14

Wyatt v. Terhune, 315 F.3d 1108, 1120 (2003) (citing Ritza v. Int’l
Longshoremen’s & Warehousemen’s Union, 837 F.3d 365, 368 & n.3 (9th Cir. 1988) (per
curiam)).
ORDER DENYING MOTION FOR NEW TRIAL
Glass v. Gregory, 1:14-cv-01703-RRB – 4

presented by Glass the Court did consider the CDCR Forms 22s regarding the lost appeal
in KVSP-0-10-02369. Moreover, in rendering its decision the Court assumed that the
original grievance was lost.
The issue before the Court is whether or not Glass took reasonable
and appropriate steps to exhaust his administrative remedies, but was
precluded from exhausting his remedies, not through his own fault but by the
mistake of the prison authorities in processing his appeal. In ruling on the
pending motion the Court assumes that Glass did not receive the original of
the January 20, 2011, second-level response in KVSP-0-10-02369 as
required by the regulations. The Court also holds that because the delivery
of internal mail is controlled by prison authorities, the effect of the failure to
deliver the original second-level response is borne by the Defendants. As
noted above, it is unclear when Glass actually received a copy that the
record before the Court clearly shows Glass received at some point. The
record clearly establishes that Glass was informed of the procedure to follow
in order to obtain a copy and that he did, in fact, a some point receive a
copy. The record further shows that Glass deliberately pursued a course of
action that was futile—instead of requesting review at the third level using a
copy, Glass sought a copy that clearly delineated on its face that it was a
substitute for the original. Inferentially, when he did not receive the requested
certified copy, Glass did not further pursue his appeal. The question before
the Court is: does that excuse Glass from seeking review at the third level?
As the Ninth Circuit has clearly indicated to excuse compliance, a
prisoner must show “that administrative procedures were unavailable, that
prison officials obstructed his attempt to exhaust or that he was prevented
from exhausting because procedures for processing grievances weren’t
followed.” Glass does not dispute that California has administrative
procedures available for prisoner grievances. The facts presented do not fall
neatly within either one of the other two: obstruction or failure to follow
procedures. While the loss of the original second level decision is attributable
to prison officials, nothing in the facts presented to the Court even remotely
establishes that this “obstructed” Glass’s attempts to exhaust his
administrative remedies. On the other hand, the failure to return the original
constituted at least a technical violation of the procedures for processing
grievances. The critical question is whether this prevented Glass from
exhausting his administrative remedy. The Court holds that it did not.
Once Glass received the copy of the second level decision he could
have filed his appeal to the third level. At that point, the Secretary, or
designee, could have taken one of two actions: (1) rejected the appeal on
procedural grounds, either as untimely or because Glass did not submit the
ORDER DENYING MOTION FOR NEW TRIAL
Glass v. Gregory, 1:14-cv-01703-RRB – 5

original; or (2) have determined the appeal on the merits. Glass, by his own
actions precluded either action by the Secretary. While seeking further
review at the third level may not have afforded Glass the relief he sought,
that does not equate to making third level review futile. Thus, Glass did not
properly exhaust his administrative remedies and the complaint must be
dismissed.15
The motion for reconsideration does not point out any intervening controlling
authority or present any fact that the Court overlooked; nor, if uncorrected, was the Court’s
disposition so clearly erroneous that, if uncorrected, it would work a manifest injustice.
IV.

ORDER
Therefore, based upon the foregoing—
Plaintiff’s Nunc Pro Tunc Request for an Extension of Time to Serve and File a

Reply to Defendants’ Opposition to Plaintiff’s Rule 60(b)(1), (3), (6) Motion Reconsideration
and to Correct the Record at Docket 56 is GRANTED.
Plaintiff’s Motion and Motion for Reconsideration to Vacate the Judgment Granting
Defendants’ Summary Judgment at Docket 52 is DENIED.
IT IS SO ORDERED this 8th day of July, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

15

Docket 49, pp. 10–12 (emphasis in the original) (footnotes omitted).

ORDER DENYING MOTION FOR NEW TRIAL
Glass v. Gregory, 1:14-cv-01703-RRB – 6