Lipsey v. Reddy et al
Filing
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ORDER OVERRULING 76 Objections to Magistrate Judge's Findings and Recommendations; ORDER DENYING 77 Plaintiff's Motion Requesting Alteration or Amendment of the Judgment and/or Motion; and ORDER DENYIN 78 Plaintiff's Federal Rule of Civil Procedure 59 and 60(b) Motions signed by Chief Judge Lawrence J. O'Neill on 3/25/2019. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHRISTOPHER LIPSEY, JR.,
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Plaintiff,
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v.
DR. REDDY, et al.,
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Defendants.
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Case No. 1:17-cv-00569-LJO-BAM (PC)
ORDER OVERRULING OBJECTIONS TO
MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS
(ECF No. 76)
ORDER DENYING PLAINTIFF’S MOTION
REQUESTING ALTERATION OR
AMENDMENT OF THE JUDGMENT
AND/OR MOTION
(ECF No. 77)
ORDER DENYING PLAINTIFF’S FEDERAL
RULE OF CIVIL PROCEDURE 59 AND 60(b)
MOTIONS
(ECF No. 78)
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Plaintiff Christopher Lipsey, Jr. is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983.
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I.
Background
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On February 7, 2019, the Magistrate Judge issued findings and recommendations that
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Defendants’ motion for summary judgment based on Plaintiff’s failure to exhaust available
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administrative remedies be granted. (ECF No. 73.) The findings and recommendations were
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served on the parties and contained notice that any objections were to be filed within fourteen (14)
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days after service. (Id. at 10.)
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On March 6, 2019, the undersigned adopted the pending findings and recommendations
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without objections from either party, granted Defendants’ motion for summary judgment, and
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ordered that judgment be entered in favor of all Defendants. (ECF No. 74.) Judgment was entered
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in favor of all Defendants against Plaintiff. (ECF No. 75).
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However, also on March 6, 2019, but after the order adopting and the judgment were
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docketed, Plaintiff filed objections to the findings and recommendations. (ECF No. 76.) While
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Plaintiff’s objections to the findings and recommendations were not docketed until March 6, 2019,
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the objections include a proof of service by mail dated February 14, 2019. Pursuant to the prison
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mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner
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delivered it to the prison authorities for mailing to the court clerk. See Houston v. Lack, 487 U.S.
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266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1108–09 (9th Cir. 2009) (mailbox rule
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articulated in Houston applies to civil rights actions). Therefore, Plaintiff’s objections to the
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findings and recommendations were timely filed and are addressed below.
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On March 18, 2019, Plaintiff filed a motion requesting to alter or amend the judgment
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and/or a motion pursuant to Federal Rules of Civil Procedure 60(b). (ECF No. 77.) On March 22,
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2019, Plaintiff filed a document titled “Federal Rule of Civil Procedure 59 and 60(b) Motions.”
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(ECF No. 78.) Both of these motions are pending review and will also be addressed below.
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II.
Plaintiff’s Objections to Magistrate Judge’s Finding and Recommendations
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In his objections to the Magistrate Judge’s February 7, 2019 findings and recommendations,
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Plaintiff first argues that the Rand notice provided by Defendants at the time Defendants’ motion
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for summary judgment was filed was insufficient because the notice failed to include a citation to
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Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010) and a statement that, according to Thomas, 611
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F.3d at 1150, a pro se inmate is not required to file affidavits, depositions, interrogatory answers,
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or admissions to defeat a motion for summary judgment, but, instead, can defeat summary judgment
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by submitting factual statements in the inmate’s opposition to the motion for summary judgment.
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However, the Court finds Plaintiff’s first objection to be unpersuasive. Initially, the Rand
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notice served on Plaintiff by Defendants is not insufficient simply because the notice failed to
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include a citation to Thomas, 611 F.3d 1144. Further, since the Court finds no support in the
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Thomas v. Ponder opinion for Plaintiff’s assertion that the Ninth Circuit articulated in Thomas that
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a pro se inmate plaintiff can defeat summary judgment by submitting factual statements in the
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inmate’s opposition to summary judgment, the Rand notice served on Plaintiff was not insufficient
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because it failed to include Plaintiff’s proposed statement.
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Second, Plaintiff argues that, since the Magistrate Judge did not mention Plaintiff’s affidavit
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in the findings and recommendations, the Magistrate Judge erred by not treating Plaintiff’s
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opposition as an affidavit to oppose Defendants’ motion for summary judgment.
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The Court finds Plaintiff’s second objection is unpersuasive. Since the filings and motions
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of a pro se inmate must be construed liberally, a verified opposition may be treated or considered
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as an affidavit in opposition to summary judgment, but only to the extent that the inmate’s
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statements in the opposition are based on personal knowledge and set forth specific facts admissible
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in evidence. McElyea v. Babbitt, 833 F.2d 196, 197–98, 198 n.1 (9th Cir. 1987). In this case, while
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it is true that the Magistrate Judge’s findings and recommendations failed to explicitly state that
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Plaintiff’s opposition was being treated as an affidavit, the findings and recommendations clearly
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demonstrate that the Magistrate Judge considered factual statements made by Plaintiff in his
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opposition as evidence. The fact that the Magistrate Judge found that Plaintiff failed to create any
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genuine issue of material fact that administrative remedies were effectively unavailable to Plaintiff
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does not establish that the Magistrate Judge did not treat Plaintiff’s opposition as an affidavit.
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Third, Plaintiff contends that the Magistrate Judge erred in recommending that the
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undersigned grant Defendants’ motion for summary judgment because Plaintiff presented the Court
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with evidence demonstrating that administrative remedies were effectively unavailable to him.
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Specifically, Plaintiff argues that he provided the Court with evidence that he submitted
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administrative appeals regarding the March 21, 2016 incident within 30 days of the incident and
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more than 30 days after the incident, but that the appeals coordinators did not respond to his
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administrative appeals regarding the March 21, 2016 incident until they rejected his July 5, 2016
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appeal as untimely. (ECF No. 76, at 6, 10–11.)
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The Court finds Plaintiff’s third objection to be unpersuasive. In his opposition, Plaintiff
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alleges he filed his first administrative appeal challenging the March 21, 2016 incident on
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approximately April 15, 2016 by sending the appeal to the Corcoran SHU appeal coordinators
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through “the Department of State Hospital at Stockton,” which the Court interprets as a reference
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to California Health Care Facility, Stockton. (ECF No. 58, at 2, 13, 16–18.) Plaintiff further asserts
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that, after he did not receive an inmate assignment notice for his April 2016 appeal, he filed four
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more appeals challenging the March 21, 2016 incident, one in May, two in June, and one on July
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5, 2016. Plaintiff states that he did not receive any response to his administrative appeals until the
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appeals coordinators cancelled his July 5, 2016 appeal as untimely. (ECF No. 58, at 2, 3, 6, 13,
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16–17.)
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However, even viewing this evidence in the light most favorable to Plaintiff, Plaintiff has
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not shown that the appeals coordinators’ failure to process his April, May, and June 2016 appeals
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rendered the prison grievance process “effectively unavailable” to Plaintiff. Albino v. Baca, 747
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F.3d 1162, 1172 (9th Cir. 2014). After his June 2016 appeal was not processed, Plaintiff filed his
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July 5, 2016 appeal regarding the March 21, 2016 incident. The undisputed evidence shows that
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the appeals coordinators processed Plaintiff’s July 5, 2016 appeal by screening out and cancelling
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the appeal as untimely. The undisputed evidence also shows that, while Plaintiff resubmitted his
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cancelled July 5, 2016 appeal several times, Plaintiff failed to file a separate appeal challenging the
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cancellation of his July 5, 2016 appeal, as he was instructed he could do by the institution in several
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letters. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust ‘available’
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remedies persists as long as some remedy remains ‘available.’”); see Cal. Code Regs. tit. 15,
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§ 3084.6(a)(3), (e) (inmate can appeal cancellation decision separately). Nothing before the Court
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suggests that, if Plaintiff had filed a separate cancellation appeal contending that his July 5, 2016
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appeal was improperly cancelled as untimely because he had previously filed appeals challenging
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the March 21, 2016 incident in April, May, and June 2016 that were not processed, the appeals
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coordinators or third level would not have granted Plaintiff’s cancellation appeal and permit
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Plaintiff to resubmit his July 5, 2016 appeal. Therefore, while the appeals coordinators’ failure to
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process Plaintiff’s April, May, and June 2016 appeals may have frustrated Plaintiff, unlike the
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plaintiff in Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017), Plaintiff was not, in fact, prevented
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from pursuing his administrative remedies. It was Plaintiff’s decision to not file a separate appeal
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Consequently, Plaintiff’s evidence
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challenging the cancellation of his July 5, 2016 appeal.
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regarding his April, May, and June 2016 appeals fails to create any genuine issue of material fact
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about Plaintiff’s failure to exhaust his available administrative remedies.
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Finally, the remainder of Plaintiff’s objections merely reiterate arguments made in his
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opposition to the motion for summary judgment, which were fully addressed in the Magistrate
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Judge’s findings and recommendations.
Therefore, Plaintiff’s objections to the Magistrate Judge’s February 7, 2019 findings and
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recommendations, (ECF No. 76), are overruled.
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III.
Plaintiff’s Motions for Reconsideration
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On March 18, 2019, Plaintiff filed a motion requesting to alter or amend the judgment
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and/or a motion pursuant to Federal Rules of Civil Procedure 60(b). (ECF No. 77.) On March 22,
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2019, Plaintiff filed a document titled “Federal Rule of Civil Procedure 59 and 60(b) Motions.”
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(ECF No. 78.) The Court interprets both of Plaintiff’s motions as motions for reconsideration of
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the Court’s March 6, 2019 order adopting the Magistrate Judge’s February 7, 2019 findings and
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recommendations and granting Defendants’ motion for summary judgment.
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“A motion for reconsideration of summary judgment is appropriately brought under either
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Rule 59(e) or Rule 60(b).” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1129
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(E.D. Cal. 2001) (internal quotation marks and citation omitted). Regardless of whether the motion
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for reconsideration is brought under Rule 59(e) or Rule 60(b), “[a] motion for reconsideration is
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not a vehicle to reargue the motion or to present evidence which should have been raised before.”
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Westlands Water Dist., 134 F. Supp. 2d at 1131 (internal quotation marks and citation omitted).
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Therefore, “[a] party seeking reconsideration must show more than a disagreement with the Court’s
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decision, and recapitulation of the cases and arguments considered by the [C]ourt before rendering
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its original decision fails to carry the moving party’s burden.” Id. (internal quotation marks and
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citation omitted). Consequently, “[a] motion for reconsideration should not be granted, absent
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highly unusual circumstances, unless the district court is presented with newly discovered evidence,
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committed clear error, or if there is an intervening change in the controlling law.” Marlyn
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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal
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quotation marks and citation omitted). Additionally, Local Rule 230(j) requires that, when a party
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makes a motion for reconsideration, the party must show “what new or different facts or
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circumstances are claimed to exist or were not shown upon such prior motion, or what other grounds
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exist for the motion” and “why the facts and circumstances were not shown at the time of the prior
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motion.”
Plaintiff’s March 18, 2019 Motion for Reconsideration
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A.
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In his March 18, 2019 motion, Plaintiff contends that the Court should reconsider its March
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6, 2019 order adopting the findings and recommendations and granting Defendants’ motion for
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summary judgment because he did not have a pen to timely prepare his objections, he has provided
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the Court with new evidence supporting his claim that the administrative appeal process was
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effectively unavailable to him, and the evidence previously submitted to the Court shows that the
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administrative appeal process was effectively unavailable to him. (ECF No. 77.)
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First, Plaintiff’s request for reconsideration based on the fact that his objections were
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untimely because he did not have constant possession of a pen is moot because the Court previously
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determined that Plaintiff’s objections were timely filed and already considered the objections on
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their merits. Second, Plaintiff argues that the Court should reconsider the order granting summary
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judgment because he has provided the Court with new evidence demonstrating that appeals
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coordinators have a custom and habit to refuse to process properly filed administrative appeals and
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deny ever receiving the appeal so that inmates cannot exhaust the prison grievance process.
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However, evidence demonstrating that appeals coordinators at Kern Valley State Prison have
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denied receiving administrative appeals that Plaintiff asserts that he filed in 2018 does not create
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any genuine issue of material fact regarding whether California State Prison, Corcoran appeals
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coordinators’ failure to process the April, May, and June 2016 appeals that Plaintiff contends that
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he filed regarding the March 21, 2016 incident rendered the prison grievance process “effectively
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unavailable” to Plaintiff in 2016.
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Third, while Plaintiff argues that evidence previously submitted to the Court shows that the
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administrative appeal process was effectively unavailable to him, reconsideration is not appropriate
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when the moving party relies on arguments previously raised or evidence previously submitted to
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the Court. In re Benham, No. CV13-00205-VBF, 2013 WL 3872185, at *9 (C.D. Cal. May 29,
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2013) (“[A] motion for reconsideration cannot be used to ask the Court to rethink what the Court
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has already thought through merely because a party disagrees with the Court’s decision.”) (internal
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quotation marks and citation omitted). As discussed above, the Court has already addressed
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Plaintiff’s argument that his earlier appeals were ignored, and he has presented no new grounds to
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reconsider this assessment.
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Therefore, since Plaintiff has failed to present the Court with newly discovered evidence,
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demonstrate that the Court committed clear error, establish that there has been an intervening
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change in the controlling law, or establish that a manifest injustice may occur as a result of the
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Court’s March 6, 2019 order adopting the Magistrate Judge’s February 7, 2019 findings and
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recommendations and the resulting March 6, 2019 judgment, Plaintiff’s March 18, 2019 motion for
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reconsideration, (ECF No. 77), is denied.
Plaintiff’s March 22, 2019 Motion for Reconsideration
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B.
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In his March 22, 2019 motion, Plaintiff contends that the Court should reconsider its March
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6, 2019 order adopting the findings and recommendations and granting Defendants’ motion for
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summary judgment because the Court improperly dismissed the instant case with prejudice, he has
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provided the Court with new arguments and evidence supporting his claim that the administrative
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appeal process was effectively unavailable to him, and the evidence previously submitted to the
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Court shows that the administrative appeal process was effectively unavailable to him.
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However, first, Plaintiff’s assertion that the Court dismissed the instant case with prejudice
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is incorrect. Here, after finding that Defendants met their burden of establishing that Plaintiff did
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not exhaust the available administrative remedies applicable to his excessive force claim and that
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Plaintiff failed to produce evidence establishing a genuine issue of material fact that remedies were
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unavailable in this case, the Court granted Defendants’ motion for summary judgment and properly
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dismissed the instant action without prejudice. See City of Oakland v. Hotels.com LP, 572 F.3d
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958, 962 (9th Cir. 2009).
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Second, Plaintiff argues that the Court should reconsider the order granting summary
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judgment because he did not file a motion compelling answers to the discovery requests that he
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served on Defendants, because this case is very similar to Rayford v. Medina, “case no. 14-cv-
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01318-VC (2015)” and so this Court should issue the same ruling as the Rayford court, and because
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he has now presented the Court with exact copies of the separate CDCR 602 appeal forms
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challenging the cancellation of his July 5, 2016 appeal. However, a motion for reconsideration
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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.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th
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Cir. 2003). Therefore, since Plaintiff has failed to explain why he could not have raised his new
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arguments or provided the Court with his new evidence earlier in the litigation, the Court concludes
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that Plaintiff’s new arguments and evidence are not proper grounds for a motion for
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reconsideration.
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Third, Plaintiff again argues that evidence previously submitted to the Court shows that the
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administrative appeal process was effectively unavailable to him, and these arguments were fully
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addressed in the Court’s ruling on Plaintiff’s objections. As discussed above, reconsideration is
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not appropriate when the moving party relies on arguments previously raised or evidence
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previously submitted to the Court,. See Benham, 2013 WL 3872185, at *9.
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Consequently, since Plaintiff has failed to present the Court with newly discovered
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evidence, demonstrate that the Court committed clear error, establish that there has been an
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intervening change in the controlling law, or establish that a manifest injustice may occur as a result
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of the Court’s March 6, 2019 order adopting the Magistrate Judge’s February 7, 2019 findings and
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recommendations and the resulting March 6, 2019 judgment, Plaintiff’s March 22, 2019 motion for
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reconsideration, (ECF No. 78), is denied.
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IV.
Conclusion and Order
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Based on the foregoing, IT IS HEREBY ORDERED that:
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1.
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recommendations, (ECF No. 76), are OVERRULED;
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2.
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Plaintiff’s objections to the Magistrate Judge’s February 7, 2019 findings and
Plaintiff’s motion requesting to alter or amend the judgment and/or motion
pursuant to Federal Rules of Civil Procedure 60(b), (ECF No. 77), is DENIED;
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3.
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Plaintiff’s “Federal Rule of Civil Procedure 59 and 60(b) Motions,” (ECF No. 78),
is DENIED; and
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This case remains closed.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
March 25, 2019
UNITED STATES CHIEF DISTRICT JUDGE
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