Sharonoff v. California Department of Corrections et al

Filing 52

ORDER DENYING Motion for Reconsideration 45 , 49 , 51 , signed by District Judge Dale A. Drozd on 10/20/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH ALLEN SHARONOFF,

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No. 1:15-cv-00799-DAD-GSA (PC)

Plaintiff,
v.

ORDER DENYING MOTION FOR
RECONSIDERATION

MONTOYA, et al.,
(Doc. Nos. 45, 49, 51)
Defendants.

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Plaintiff, Kenneth Allen Sharonoff, is a state prisoner proceeding pro se and in forma
pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983.
On February 22, 2017, the assigned magistrate judge entered findings and

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recommendations, recommending that defendants’ motion for summary judgment be granted.

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(Doc. No. 45.) The parties were granted fourteen days in which to file objections. (Id.) After

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twenty-one days, no objections had been filed. Accordingly, on March 15, 2017, the court issued

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an order granting defendants’ motion for summary judgment. (Doc. No. 46.) On the same day,

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judgment was entered and the case was closed. (Doc. No. 47.)

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On March 16, 2017, the court received objections by plaintiff to the findings and
recommendations. (Doc. No. 48.) Plaintiff’s proof of service for his objections is dated March 2,
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2017, which would render the objections timely under the mailbox rule.1 Therefore, the court

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will consider the objections and determine whether plaintiff’s arguments therein would have

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affected the court’s decision to adopt the findings and recommendations.

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On March 29, 2017, plaintiff filed a motion to vacate the order granting defendants’

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motion for summary judgment. (Doc. No. 49.) On April 19, 2017, defendants filed an opposition

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to the motion. (Doc. No. 50.) On April 26, 2017, plaintiff filed another motion to vacate the

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order granting defendants’ motion for summary judgment (Doc. No. 51), which is identical to his

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previous filing (Doc. No. 49), save for plaintiff’s citation in the latter filing to the decision in

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Miller v. Sumner, 921 F. 2d 202 (9th Cir. 1990). (Id. at 8–9, Ex. A.) The court construes both of

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plaintiff’s motions to vacate the court’s order as motions for reconsideration.

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MOTION FOR RECONSIDERATION

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Rule 60(b) of the Federal Rules of Civil Procedure provides in relevant part:

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On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:

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(1)

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(2)
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);

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mistake, inadvertence, surprise, or excusable neglect;

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A motion under Rule 60(b)(1) or (2) must be made no more than a year after the entry of the

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judgment. Fed. R. Civ. P. 60(c).
Generally speaking, a motion for reconsideration “should not be granted . . . unless the

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district 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.” 389 Orange St. Partners v. Arnold, 179 F. 3d 656,

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665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F. 3d 1255, 1263 (9th Cir. 1993));

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accord Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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Based on the mailbox rule of Houston v. Lack, 487 U.S. 266, 276 (1988), a pro se prisoner’s
court filing is deemed filed at the time the prisoner delivers it to prison authorities for forwarding
to the court clerk. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).
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2009).2 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the

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interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of

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Bishop, 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531

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F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking

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reconsideration under Rule 60, the moving party “must demonstrate both injury and

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circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and

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citation omitted).

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DISCUSSION

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The court has thoroughly reviewed plaintiff’s objections received by the court on March

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16, 2017, plaintiff’s motion to vacate the order granting defendants summary judgment filed on

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March 29, 2017, defendants’ opposition filed on April 19, 2017, and plaintiff’s reply filed on

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April 26, 2017. (Doc. Nos. 48–51.)

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In his objections to the findings and recommendations, plaintiff argues that he was not

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required under 42 U.S.C. § 1997(e) to further pursue the inmate appeal he filed on May 8, 2015

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prior to filing this lawsuit. Plaintiff also argues that his filing of his complaint in this action

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before allowing the requisite thirty days for a response to his inmate appeal did not cause the

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defendants to suffer undue prejudice or significantly change the outcome of his inmate appeal.

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Plaintiff asserts that he waited nineteen days for a response to his inmate appeal, which gave

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prison officials plenty of time to correct their mistakes before he filed suit.

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In their opposition to plaintiff’s motion for reconsideration defendants acknowledge that

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plaintiff’s objections to the findings and recommendations were filed timely under the mailbox

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rule, but that consideration of those objections does not change the fact that plaintiff did not

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exhaust his available administrative remedies prior to filing suit as required. Defendants argue

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that plaintiff’s premature filing of his lawsuit undermines the purpose of the exhaustion

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The Local Rules of this court require, in relevant part, that in moving for reconsideration of an
order denying or granting a prior motion, a party must show “what new or different facts or
circumstances are claimed to exist which did not exist or were not shown” previously, “what
other grounds exist for the motion,” and “why the facts or circumstances were not shown” at the
time the substance of the order which is objected to was considered. Local Rule 230(j).
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requirement, which requires compliance with the prison’s procedural rules and deadlines.

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Defendants contend that administrative remedies were still available to plaintiff at the time he

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filed this lawsuit, and therefore, it cannot be disputed that plaintiff did not properly exhaust his

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administrative remedies before he filed suit.

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After consideration of plaintiff’s objections and motion for reconsideration, the court’s

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decision with respect to defendants’ motion for summary judgment in their favor remains

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unchanged. Notably, in the findings and recommendations issued on February 22, 2017 (Doc.

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No. 45) and later adopted by the undersigned on March 15, 2017 (Doc. No. 46), the magistrate

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judge found that “[p]laintiff’s failure to wait the full 30 days denied prison officials a fair

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opportunity to correct their own errors and such failure is fatal to his lawsuit.” (Doc. No. 45 at

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13–14). The court does not find this conclusion to be the result of mistake, inexcusable neglect,

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or clear error. Plaintiff has not set forth any new evidence which would cause the court to

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consider reversing its prior decision. In short, the Prison Litigation Reform Act requires prisoners

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to exhaust their available administrative remedies prior to filing suit, Jones v. Bock, 549 U.S. 199,

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211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002), and plaintiff failed to

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do so here. Therefore, plaintiff’s motion for reconsideration will be denied, and plaintiff’s case

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shall remain closed.

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CONCLUSION
Based on the foregoing, consideration of plaintiff’s arguments set forth in his objections

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do not change the court’s March 15, 2017 decision granting defendants’ motion for summary

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judgment due to plaintiff’s failure to exhaust his administrative remedies prior to filing suit.

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Plaintiff’s motion for reconsideration (Doc. Nos 49 and 51) is denied.

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IT IS SO ORDERED.

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Dated:

October 20, 2017
UNITED STATES DISTRICT JUDGE

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