Andersen v. Montes et al

Filing 59

ORDER Denying 53 Motion for Reconsideration, signed by District Judge Dale A. Drozd on 6/3/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW S. ANDERSEN,

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Plaintiff,

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v.

No. 1:16-cv-00236-DAD-SAB

ORDER DENYING MOTION FOR
RECONSIDERATION

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MARISELA MONTES, et al.,

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Defendants.

(Doc. No. 53)

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Plaintiff Andrew S. Andersen is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. On April 9, 2019, the undersigned issued an order adopting

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in full the assigned magistrate judge’s November 28, 2018 findings and recommendations

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recommending dismissing plaintiff’s third amended complaint without further leave to amend for

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failure to state a claim. (Doc. No. 51.)

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On April 29, 2019, plaintiff moved this court for reconsideration of the April 9 order.

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(Doc. No. 53.) Therein, plaintiff concedes that the rights prisoners possess are more limited in

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scope than the constitutional rights held by non-incarcerated individuals, but continues to argue,

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as he did in his objections to the November 28, 2018 findings and recommendations (see Doc.

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No. 50), that the regulatory scheme of the California Board of Parole Hearings (“BPH”) for

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determining whether to grant life prisoners release on parole violates the First Amendment

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because BPH regulations are overbroad and chill prisoners’ thoughts and beliefs. (Doc. No. 53 at
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4–5.) In the alternative, plaintiff asks this court for leave to file a fourth amended complaint,

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which he has attached to the pending motion. (Doc. No. 53 at 6–20.)

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Federal Rule of Civil Procedure 60(b) provides that “[o]n motion and upon such terms as

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are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the

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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other

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reason justifying relief from the operation of judgment.” Relief under Rule 60 “is to be used

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sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

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(internal quotations marks and citation omitted) (addressing reconsideration under Rules

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60(b)(1)-(5)). The moving party “must demonstrate both injury and circumstances beyond his

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control.” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires,

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in relevant part, that plaintiff show “what new or different facts or circumstances are claimed to

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exist which did not exist or were not shown” previously, “what other grounds exist for the

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motion,” and “why the facts or circumstances were not shown” at the time the substance of the

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order which is objected to was considered. “A motion for reconsideration should not be granted,

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absent highly unusual circumstances, unless the district court is presented with newly discovered

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evidence, committed clear error, or if there is an intervening change in the controlling law,” and it

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“may not be used to raise arguments or present evidence for the first time when they could

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reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations

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omitted).

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Here, the pending motion falls far short of these standards. Plaintiff has not shown

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mistake, inadvertence, surprise, or excusable neglect; has not shown the existence of either newly

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discovered evidence or fraud; has not established that the judgment is either void or satisfied; and

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has not presented any other reasons justifying relief from judgment. Moreover, pursuant to the

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court’s Local Rules, plaintiff has not shown “new or different facts or circumstances claimed to

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

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for the motion.” Local Rule 230(j). The pending motion essentially renews plaintiff’s facial
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challenge to BPH’s parole procedures and regulations but, in doing so, he has provided no basis

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for the court to reconsider its prior order. Plaintiff contends that “[i]t is premature for the Court to

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rule that a regulation is not overbroad before inmates have an opportunity to present alternatives

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that are more narrowly tailored.” (Doc. No. 53 at 4.) This argument, however, is unavailing.

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First, plaintiff cites to no authority in support of his position. Second, “[a] party seeking

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reconsideration must show more than a disagreement with the Court’s decision, and recapitulation

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of the cases and arguments considered by the court before rendering its original decision fails to

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carry the moving party's burden.” Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1236

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(E.D. Cal. 2010) (citation omitted); see also Sami Mitri v. Walgreen Co., No. 1:10-CV-538 AWI

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SKO, 2015 WL 1876133, at *1 (E.D. Cal. Apr. 10, 2015) (“Reconsideration should not be used

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merely to ask the court to rethink what it has already thought.”). Third, the pending motion does

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not address, let alone dispute in any meaningful way, the analysis set forth in the November 28,

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2018 findings and recommendations that the BPH regulations at issue are not overbroad because

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they set forth standards and objective factors that BPH is to consider when determining whether

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an inmate is suitable for release on parole. (Doc. Nos. 47 at 6–7; 51 at 2.) Accordingly, the court

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will deny plaintiff’s motion for reconsideration.

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Finally, the court denies plaintiff’s request to file a fourth amended complaint. Federal

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Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading . . . with the

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court’s leave [and] . . . [t]he court should freely give leave when justice so requires.” In

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evaluating whether leave to amend should be given, the following factors should be considered:

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“bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether

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the party has previously amended his pleadings.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

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1995). “Futility alone can justify the denial of a motion for leave to amend.” Nunes v. Ashcroft,

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375 F.3d 805, 808; see also Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th

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Cir. 1999) (“Where the legal basis for a cause of action is tenuous, futility supports the refusal to

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grant leave to amend.”) However, “before dismissing a pro se complaint the district court must

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provide the litigant with notice of the deficiencies in his complaint in order to ensure that the

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litigant uses the opportunity to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
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Cir. 2012) (citation omitted). Here, the court concludes it would be futile to grant plaintiff further

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leave to amend because: (1) the court provided him with the applicable legal standards to allege a

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facial challenge to the parole procedure (see Doc. No. 32 at 2–3); (2) plaintiff has been granted

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three opportunities to mount such a facial challenge (see Doc. Nos. 32, 41, 43); and (3) his facial

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challenge to the BPH regulations fails as a matter of law.

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Accordingly, plaintiff’s motion for reconsideration (Doc. No. 53) is denied in its entirety.
IT IS SO ORDERED.
Dated:

June 3, 2019
UNITED STATES DISTRICT JUDGE

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