Perrotte v. Johnson et al

Filing 169

ORDER OVERRULING Plaintiff's Supplemental Objections and DENYING Motion to Alter the Judgment re 164 & 167 signed by Chief Judge Lawrence J. O'Neill on 11/26/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY P. PERROTTE,

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Plaintiff,
v.
STACEY JOHNSON, et al.,
Defendants.

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Case No. 1:15-cv-00026-LJO-SAB (PC)
ORDER OVERRULING PLAINTIFF’S
SUPPLEMENTAL OBJECTIONS, AND
DENYING MOTION TO ALTER THE
JUDGMENT
[ECF Nos. 164, 167]

Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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I.

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BACKGROUND

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On January 18, 2017, the Magistrate Judge issued Findings and Recommendations in favor of

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Defendant Hebron, finding that the undisputed evidence demonstrated that Plaintiff’s third level

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appeal alleging retaliation failed to name or identify Hebron as a participant. (ECF No. 70.) The

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Findings and Recommendations were served on Plaintiff and contained notice that objections were to

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be filed within thirty days, and Plaintiff did not file objections. (ECF No. 77.) On February 28, 2017,

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the undersigned adopted the Findings and Recommendations, and Defendant Hebron was dismissed

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from the action. (Id.)

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On July 10, 2018, the Magistrate Judge filed a Findings and Recommendations recommending

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that Defendants’ motion for summary judgment be granted, and this action proceed only on the

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retaliation claim against Defendant Johnson for placement of false CDCR Form 128-B in his central

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file and placement in the administrative security unit and all other claims and Defendant LeFlore be

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dismissed, without prejudice. (ECF No. 157.) The Findings and Recommendations were served on

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the parties and contained notice that objections were due within thirty days. (Id.) On August 15,

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2018, the Court granted Plaintiff thirty additional days to file objections. (ECF No. 159.)

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On September 24, 2018, the undersigned adopted the Findings and Recommendations, noting

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that no objections were timely filed. (ECF No. 161.) However, on this same date, but after the order

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adopting was placed on the docket, Plaintiff filed objections. (ECF No. 162.) On September 25,

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2018, the undersigned overruled Plaintiff’s objections. (ECF No. 163.)

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On September 28, 2018, Plaintiff filed a supplemental motion to add additional exhibits to his

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objections. (ECF No. 164.) Then, on October 15, 2018, Plaintiff filed a motion to alter the judgment.

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(ECF No. 167.) On November 5, 2018, Defendant Johnson filed an opposition to Plaintiff’s motion

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to alter the judgment. (ECF No. 168.) Both of Plaintiff motions are pending review and will be

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addressed below.

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II.

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DISCUSSION

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A.

Motion to Supplement Objections

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In his motion to supplement his prior objections with additional evidence, Plaintiff contends:

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(1) although he did not file an appeal on the issue of retaliation by Johnson in mailing an escape letter

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the prison was on notice of such claim; (2) he filed complaints regarding the inadequate grievance

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system; and (3) the assault which took place in the administrative segregation unit would not have

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occurred absent Johnson’s retaliation.

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The allegations and evidence submitted by Plaintiff do not alter the Magistrate Judge’s July 10,

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2018 Findings and Recommendations. Plaintiff has not demonstrated a valid basis to reject and/or

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reconsider the July 10, 2018, Findings and Recommendations. Namely, Plaintiff has not demonstrated

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that any other retaliation claims have been exhausted beyond the claim against Defendant Johnson for
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placement of a false CDCR Form 128-B in his central file and placement in the administrative housing

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unit as a result. Accordingly, Plaintiff’s supplemental objections are overruled.

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B.

Motion to Alter the Judgment

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“To succeed [on a Rule 59(e) motion], a party must set forth facts or law of a strongly

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convincing nature to induce the court to reverse its prior decision.” United States v. Westlands Water

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Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2011). “While Rule 59(e) permits a district court to

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reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly

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in the interests of finality and conservation of judicial resources… A Rule 59(e) motion may not be

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used to raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal

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citation omitted); see also McQuillion v. Duncan, 342 F.3d 1012, 1013 (9th Cir. 2003). Thus, a

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motion for reconsideration cannot be used to get a second bite at the apple. Campion v. Old Repub.

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Home Protection Co., Inc., No. 09-CV-00748-JMA(NLS), 2011 WL 1935967, at *1 (S.D. Cal. May

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20, 2011). The purpose of Rule 59(e) is not to “give an unhappy litigant one additional chance to

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sway the judge. [A]rguments and evidence [that] were previously carefully considered by the Court,

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[] do not provide a basis for amending the judgment.” Kilgore v. Colvin, No. 2:12-CV-1792-CKD,

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2013 WL 5425313, at *1 (E.D. Cal. Sept. 27, 2013) (internal quotations omitted).

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Furthermore, “[m]ere doubts or disagreement about the wisdom of a prior decision” is

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insufficient to warrant granting a Rule 59(e) motion. Campion, 2011 WL 1935967, at *1 (quoting

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Hopwood v. Texas, 236 F.3d 256, 273 (5th Cir. 2000)). For a decision to be considered “clearly

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erroneous” it must be “more than just maybe or probably wrong; it must be dead wrong.” Id. A

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“movant must demonstrate a ‘wholesale disregard, misapplication, or failure to recognize controlling

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precedent.” Id. (quoting Oto v. Metro Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)).

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In his motion to alter the judgment, Plaintiff repeats arguments that were previously

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made in this action, including the following: (1) the declarations of CDCR Appeals Coordinator J.

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Corral and Chief of Office of Appeals M. Voong were false and perjured. (See ECF No. 117, pp. 1-6,

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13-27; ECF No. 114, p. 1-5; ECF No. 162, pp. 6-7, 9-10; ECF No. 95, pp. 16-2.); (2) Plaintiff was

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prejudice because the court has not yet ruled on his numerous motions. (ECF No. 162, pp. 7-8.); (3)
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the prison handles appeals improperly, and Plaintiff filed an appeal regarding such mishandling. (ECF

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No. 162 pp. 1-2; ECF No. 117, p.3-21; ECF No. 117, Ex. D; ECF No. 95, pp. 4-6.); (4) Plaintiff put

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the prison on notice of his claim that Defendant Johnson authored the escape letters. (ECF No. 162,

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pp. 4, 13-14.); (5) Plaintiff’s failure to file an appeal concerning the escape letters was excusable and

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due to the lack of information or documents. (ECF No. 117, pp. 10-11; ECF No. 95, p. 31.); and (6)

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Plaintiff was deterred from utilizing the administrative remedies available because prison guards

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orchestrated an assault against him. (ECF No. 117, pp. 7, 19-22; ECF No. 162, pp. 11-13; ECF No.

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95, pp. 3-4, 6.) As relief, Plaintiff seeks the following: (1) to rescind the order and reinstated the cause

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of action on the escape letter; (2) all the action to proceed on the assault claim against Defendant

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Johnson; (3) allow Plaintiff to add Sergeant Zinnani as a conspirator of Johnson in the assault; (4)

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issue subpoenas previously requested; and (5) review the pending motions.

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Plaintiff does not present new law or facts as a basis for altering the Court’s prior rulings and

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judgment in favor of Defendants Hebron, LeFlore, and Johnson on certain claims. Rather, as

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illustrated above, Plaintiff repeats and expands on arguments already previously in his oppositions and

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objections to summary judgment. Plaintiff claims that he is prejudiced by the Court’s docket in that

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the September 24, 2018, Findings and Recommendations were adopted prior to ruling on Plaintiff’s

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various pending motions. However, Plaintiff has failed to demonstrate that it was clear error or

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manifest injustice for the Court to rule on Defendant Johnson and LeFlore’s motion for summary

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judgment prior to resolving Plaintiff various after-filed motions regarding various matters. Indeed,

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Plaintiff filed an opposition to Defendants’ and objections to the Findings and Recommendations, and

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there is no basis for reconsideration.

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C.

Leave to Amend the Complaint

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As part of relief in his 59(e) motion, Plaintiff requests to add Sergeant Zinnani “as a

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conspirator of Johnson’s” in the alleged assault. To the extent, Plaintiff seeks leave to amend the

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complaint, it must be denied.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course twenty-one days after serving, or if a response was filed, within

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twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may
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amend only by leave of the court or by written consent of the adverse party. Fed. R. Civ. P. 15(a)(2).

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Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”

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AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.

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Civ. P. 15(a)). “This policy is to be applied with extreme liberality.” C.F. v. Capistrano Unified Sch.

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Dist., 654 F.3d 975, 985 (9th Cir. 2011). “This liberality in granting leave to amend is not dependent

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on whether the amendment will add causes of action or parties.” DCD Programs, Ltd. v. Leighton,

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833 F.2d 183, 186 (9th Cir. 1987). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay

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in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951.

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In this instance, Defendants filed an answer on December 15, 2017. Plaintiff did not file a first

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amended complaint within twenty-one days of Defendants’ answer. In addition, the Court’s February

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7, 2017, discovery and scheduling order set the deadline to amend the pleading as August 7, 2017.

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Therefore, Plaintiff requires leave of court to file an amended complaint. Plaintiff fails to include a

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proposed copy of the amended complaint. Local Rule 137(c). Nonetheless, Plaintiff seeks to amend

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to add Sergeant Zinnani as a Defendant and conspirator of Defendant Johnson in the alleged assault of

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Plaintiff. However, for the reasons explained in the July 10, 2018, Findings and Recommendations,

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Plaintiff has not exhausted such claim and therefore amendment to include Zinnani as a Defendant

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would be futile. See Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051, 1055 (9th Cir.

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2009) (futility of amendment, alone, can justify denying a motion to amend). Accordingly, Plaintiff’s

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motion to amend the complaint must be denied.

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III.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s supplemental objections to the July 10, 2018 Findings and

Recommendations are overruled;

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2.

Plaintiff’s motion to alter the judgment is denied; and

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3.

Plaintiff’s motion to amend the complaint is denied.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

November 26, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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