Gonzalez v. The Fresno Sheriff's Department et al

Filing 19

ORDER denying 18 Motion for Reconsideration and extending deadline to file Third Amended Complaint signed by Magistrate Judge Barbara A. McAuliffe on 12/27/2016. Third Amended Complaint due by 1/31/2017.(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HERNANDEZ GONZALEZ, 12 13 14 15 Plaintiff, v. THE FRESNO SHERIFF’S DEPARTMENT, et al., Defendants. 16 Case No. 1:15-cv-01200-BAM (PC) ORDER DENYING MOTION FOR RECONSIDERATION REGARDING ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 18) ORDER EXTENDING DEADLINE TO FILE THIRD AMENDED COMPLAINT 17 18 THIRTY (30) DAY DEADLINE 19 20 I. Background 21 Plaintiff Michael Hernandez Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se 22 and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this 23 action on August 3, 2015. (ECF No. 1.) Plaintiff’s allegations concern events that took place 24 while Plaintiff was a pretrial detainee in the Fresno County jail. 25 On November 17, 2016, the Court issued a screening order dismissing Plaintiff’s second 26 amended complaint with leave to amend within thirty (30) days. (ECF No. 17.) On December 14, 27 2016, Plaintiff filed the instant motion for reconsideration by a district judge of the Court’s 28 screening order. (ECF No. 18.) 1 1 II. 2 Plaintiff is not entitled to reconsideration by a district judge. Plaintiff consented in writing Reconsideration by District Judge 3 to magistrate judge jurisdiction under 28 U.S.C. § 636(c) on August 13, 2015 (ECF No. 4), and 4 again on August 26, 2015 (ECF No. 5). “Once a civil case is referred to a magistrate judge under 5 28 U.S.C. § 636(c), the reference can be withdrawn by the court only ‘for good cause shown on 6 its own motion, or under extraordinary circumstances shown by any party.’” Dixon v. Ylst, 990 7 F.2d 478, 480 (9th Cir. 1993) (citation omitted); see also E.D. Cal. Local R. Appendix A(k)(4) 8 (where prisoner consents to proceed before a magistrate judge, the magistrate judge shall act 9 pursuant to § 636(c) “until the action is reassigned to a District Judge as required by this 10 subsection or otherwise applicable law”). The Court does not find good cause to withdraw 11 Plaintiff’s consent, and Plaintiff has not presented extraordinary circumstances entitling him to 12 withdraw his consent. Accordingly, Plaintiff’s motion for reconsideration by a district judge shall 13 be denied. 14 15 16 III. Motion for Reconsideration Rule 60(b)(6) A. Standard Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order 17 for any reason that justifies relief. Rule 60(b)(6) “is to be ‘used sparingly as an equitable remedy 18 to prevent manifest injustice and is to be utilized only where extraordinary circumstances’” exist. 19 Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoting Latshaw v. Trainer Wortham & 20 Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). The moving party “must demonstrate both injury 21 and circumstances beyond his control.” Latshaw, 452 F.3d at 1103. In seeking reconsideration of 22 an order, Local Rule 230(j) requires a party to show “what new or different facts or circumstances 23 are claimed to exist which did not exist or were not shown upon such prior motion, or what other 24 grounds exist for the motion.” 25 “A motion for reconsideration should not be granted, absent highly unusual 26 circumstances, unless the ... court is presented with newly discovered evidence, committed clear 27 error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. 28 Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). “A party seeking 2 1 reconsideration must show more than a disagreement with the court’s decision, and 2 ‘recapitulation ...’” of that which was already considered by the court in rendering its decision. 3 United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (quoting 4 Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D. N.J. 1992)). 5 6 B. Discussion Plaintiff contends that he satisfied the linkage requirement, that he has stated a claim for 7 failure to protect, and that the Court’s decision conflicts with Ninth Circuit and Supreme Court 8 precedent. (ECF No. 18.) In particular, Plaintiff first argues that he satisfied the linkage 9 requirement when he stated that Defendants Mims and Does 1 to 20 formed a classification 10 committee and were aware of the attacks on him, and that he allegedly suffered harm as a result 11 of their refusal to place him in protective custody. Plaintiff appears to misunderstand the linkage 12 necessary to state a constitutional claim. As indicated in the Court’s screening order, Plaintiff 13 must specify which individual defendant performed which action or omission that led to the 14 alleged constitutional deprivations. (ECF No. 17 at p. 4:20-22.) For example, Plaintiff must 15 specify which defendants were responsible for his initial placement in a 12-man holding tank, 16 which defendants were responsible for his subsequent placements in the Fresno County Jail, and 17 which defendants allegedly reviewed his discharge papers. Plaintiff may not simply lump the 18 Defendants and their actions together. However, Plaintiff need not know the names of the 19 individual defendants to properly link them at this stage of litigation, and he may use the Doe 20 designation in any amended complaint. Cf. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 21 1980) (noting that usage of “Doe” defendants is not favored, but allowed where identity of 22 alleged defendants will not be known before filing of complaint). 23 Plaintiff next contends that he stated a claim for failure to protect when he informed the 24 classification committee that gang members in prison, known as the “Fresno Bulldogs,” were 25 trying to kill him. He states that every time he was moved to a different cell, he suffered severe 26 bodily harm from these gang members, which at one point required hospitalization and surgery. 27 Plaintiff alleges that, after undergoing surgery and following his discharge from the hospital, his 28 discharge papers recommended that he be placed in a hospital or protective custody. Plaintiff 3 1 further alleges that Defendants reviewed Plaintiff’s discharge papers, ignored their 2 recommendations, and placed Plaintiff in housing where he again suffered severe bodily harm 3 because of these gang members. Plaintiff also asserts that Defendants conducted no investigation 4 into whether any of these gang members were in those holding cells. 5 Plaintiff’s argument that he has satisfied his claim for failure to protect fails, as it is 6 conclusory and simply restates the allegations in his second amended complaint. Plaintiff’s 7 motion essentially recapitulates his allegations, and at most evidences a disagreement with the 8 Court’s decision, which is not enough to support a motion for reconsideration. Westlands Water 9 Dist., 134 F. Supp. 2d at 1131. 10 Plaintiff also appears to allege some facts not stated in his second amended complaint, but 11 fails to explain why these facts were not included in the complaint. See Marlyn Nutraceuticals, 12 Inc., 571 F.3d at 881 (denying introduction of new evidence where it could have been introduced 13 before court made its decision). Specifically, these new allegations include that the Defendants 14 reviewed Plaintiff’s discharge papers containing the recommendation to place him in protective 15 custody before he was attacked again, and that the Defendants conducted no investigation into 16 whether any of these gang members were housed in the holding cells where he would be placed. 17 As these allegations were not included in Plaintiff’s second amended complaint, the Court will 18 not consider them for purposes of reconsideration of the screening order. Plaintiff is advised that 19 if he has new allegations against these Defendants, he should include them in any amended 20 complaint. 21 As a final matter, Plaintiff argues that the Court’s screening order conflicts with Supreme 22 Court and Ninth Circuit precedent regarding the right of a prisoner to be protected. Plaintiff cites 23 the cases of Farmer v. Brennan, 511 U.S. 825 (1994), Noll v. Carlson, 809 F.2d 1446 (9th Cir. 24 1987), and Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) to support his argument that the 25 Court’s screening order conflicts with holdings regarding cruel and unusual punishment and 26 constant threats of violence. Plaintiff’s argument is unavailing. In the screening order, the Court 27 not only acknowledged the duty of prison officials to take reasonable measure to guarantee the 28 safety of those in their care, but also identified the elements of a pretrial detainee’s Fourteenth 4 1 Amendment failure-to-protect claim as outlined by the Ninth Circuit in Castro v. County of Los 2 Angeles, 833 F.3d 1060 (9th Cir. 2016). (ECF No. 17, pp. 5-6.) The Court then analyzed 3 Plaintiff’s allegations accordingly and found that Plaintiff had not stated a failure-to-protect 4 claim. 5 IV. 6 For the reasons stated, Plaintiff’s motion for reconsideration, filed on December 14, 2016, 7 8 9 Conclusion and Order is HEREBY DENIED. (ECF No. 18.) Additionally, in light of Plaintiff’s having filed this motion for reconsideration and the Court’s need to address it, the Court finds that Plaintiff should be granted additional time to file a 10 third amended complaint or a notice of voluntary dismissal. Accordingly, the Court HEREBY 11 GRANTS Plaintiff an additional thirty (30) days from the date of service of this order to file a 12 third and final amended complaint or a notice of voluntary dismissal. 13 Plaintiff’s failure to comply with this order will result in the dismissal of this action, 14 with prejudice, for failure to state a claim, failure to obey a court order, and failure to 15 prosecute. 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara December 27, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 5

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