Coleman, et al v. Schwarzenegger, et al

Filing 7845

ORDER signed by Chief District Judge Kimberly J. Mueller on 5/22/23 GRANTING 7831 defendants' request for leave to file a motion for reconsideration of the court's 4/12/23 order. Defendants' proposed motion for reconsideration, ECF No. 7831-2 is DEEMED filed 5/9/23. Defendants' 5/9/23 motion for reconsideration, ECF No. 7831-2, is DENIED. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RALPH COLEMAN, et al.,

12

Plaintiffs,

13
14

No. 2:90-0520 KJM DB P
ORDER

v.
GAVIN NEWSOM, et al.,

15

Defendants.

16
17

On May 9, 2023, defendants filed a request for leave to file a motion for reconsideration

18

of this court’s April 12, 2023 order, ECF No. 7807, adopting a Report and Recommendation from

19

the Special Master, ECF No. 7682, to give final approval to a policy governing use of

20

telepsychiatry in California Department of Corrections and Rehabilitation (CDCR) institutions,

21

together with a proposed motion for reconsideration. ECF No. 7831. On May 11, 2023,

22

defendants filed a notice of appeal from that order. ECF No. 7834. On May 17, 2023, as

23

required by court order, ECF No. 7832, plaintiffs filed a response to defendants’ request for leave

24

to file the motion for reconsideration. ECF No. 7842. For the reasons explained below,

25

defendants’ request for leave to file a motion for reconsideration will be denied.

26

I.

BACKGROUND

27

The background leading to the April 12, 2023 order is laid out in full in that order and

28

incorporated here by reference. See ECF No. 7807 at 1-5. In that order, the court declined to
1

1

consider a proposal by defendants for sweeping modifications to their telepsychiatry policy. Id.

2

at 8. The court reiterated defendants’ use of telepsychiatry is currently controlled by two prior

3

orders, one issued October 10, 2017, ECF No. 5711, and one issued July 3, 2018, ECF No. 5850,

4

which together “imposed ‘mandatory’ limitations on defendants’ use of telepsychiatry.” Id.

5

(quoting Coleman v. Newsom, 789 F. App’x 38, 39 (9th Cir. 2019) (unpublished)). The court

6

found defendants had neither filed motions to modify those controlling orders nor sought to reset

7

a previously vacated hearing on the use of telepsychiatry. Id. The court also found that a process

8

agreed to by the parties and approved by the court for finalizing the provisionally approved

9

telepsychiatry policy “is not an appropriate process for seeking changes of the scope defendants

10

propose” for the use of telepsychiatry. Id. The court largely relied on settled rules governing the

11

burden a party must carry in seeking modification of court orders. Id. at 9–10. The court

12

specifically left the door open for defendants to bring a Rule 60 motion seeking modification of

13

those orders. Id.

14

II.

DISCUSSION

15

A.

16

As a general rule, the filing of a notice of appeal “divests the district court of its control

17

over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount

18

Co., 459 U.S. 56, 58 (1982). However, the district court retains jurisdiction to resolve a timely

19

filed motion for reconsideration even after a notice of appeal is filed. See Fed. R. App. P.

20

4(a)(4)(iv) (motion for reconsideration filed within twenty-eight days of appealable order extends

21

time for filing notice of appeal from underlying order until motion for reconsideration is

22

resolved); see also Fed. R. App. P. 4(a)(B)(i) (notice of appeal filed before resolution of timely

23

filed motion for reconsideration “becomes effective to appeal” underlying order when motion for

24

reconsideration is resolved).

25

Effect of Defendants’ Notice of Appeal on Court Jurisdiction

Here, the court has not yet granted defendants’ request for leave to file their motion for

26

reconsideration. The court’s December 24, 2020 order is intended to ensure the parties have

27

exhausted all meet and confer efforts, including communications with the Special Master, before

28

bringing motions and at this late stage of these remedial proceedings. See ECF No. 7003 at 2. It
2

1

is also intended generally to encourage focus on remedial efforts more than litigation activity.

2

See generally Reporter’s Transcript of Proceedings (RT 12/18/2020), ECF No. 7002, at 8-9.

3

Defendants’ request for leave to file the motion for reconsideration satisfies at least the

4

first purpose of the December 24, 2020 order; defendants have made an adequate showing of the

5

steps taken to exhaust meet and confer efforts and to communicate with the Special Master. See

6

Decl. of Wolff, ECF No. 7831-3. Plaintiffs do not contend otherwise. See generally ECF

7

No. 7842. In this instance, the second purpose is coextensive with the court’s resolution of

8

defendants’ motion; indeed, plaintiffs’ response focuses on whether defendants have made the

9

showing necessary to obtain reconsideration of the court’s order. See generally ECF No. 7842.

10

Accordingly, defendants’ request for leave to file their proposed motion for reconsideration will

11

be granted and the motion for reconsideration will be deemed filed May 9, 2023. Because the

12

motion was timely and challenges the appealed order, this court has jurisdiction to consider that

13

motion.

14

B.

15

The court is satisfied the briefing filed by the parties on the motion for reconsideration is

16
17
18

Motion for Reconsideration

sufficient to allow it to resolve the motion.
1.

Positions of the Parties

Defendants contend the court made a “clear error” in concluding they were required to

19

bring a Rule 60 motion to modify the October 10, 2017 and July 3, 2018 orders rather than follow

20

the agreed-upon process for review of the provisionally approved telepsychiatry policy.

21

Defendants contend the language of the parties’ stipulation, approved by the court, that the

22

provisionally approved telepsychiatry policy “replaces all previous policies concerning CDCR’s

23

use of telepsychiatry” supersedes the court’s October 10, 2017 and July 3, 2018 orders. ECF

24

No. 7831-2 at 5. Therefore, they argue, “the procedural framework set forth in” the parties’

25

stipulation and approved by the court in its March 27, 2020 order, “was the applicable process to

26

propose modifications to the Policy.” Id.

27
28

Plaintiffs disagree. They argue defendants only rehash arguments made in their objections
to the Special Master’s Report and Recommendation without any showing why they could not
3

1

have discussed those contentions “in more detail in their original briefing.” ECF No. 7842 at 3.

2

They also contend defendants have not shown the court’s order was clearly erroneous. Id.

3
4

2.

Standards

In relevant part, Rule 60 of the Federal Rules of Civil Procedure authorizes the court to

5

relieve a party from an order for “mistake, inadvertence, fraud, or excusable neglect” or for “any

6

other reason that justifies relief. Fed. R. Civ. P. 60(b)(1), (b)(6). Under this district’s local rules,

7

a party seeking reconsideration of a court order must show, among other things:

8
9
10

(3) what new or different facts or circumstances are claimed to exist which did not
exist or were not shown upon such prior motion, or what other grounds exist for the
motion; and

11

(4) why the facts or circumstances were not shown at the time of the prior motion.

12

E.D. Cal. L.R. 230(j). And more broadly, “a motion for reconsideration should not be granted,

13

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

14

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

15

389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

16
17

3.

Analysis

Defendants identify no new law or facts. They contend the court clearly erred. The

18

Special Master’s December 15, 2022 Report and Recommendation squarely presented two

19

questions: (1) whether the court’s October 10, 2017 and July 3, 2018 orders were the law of the

20

case with respect to CDCR’s use of telepsychiatry, see ECF No. 7682 at 18 n.9, 64, 68; and

21

(2) whether the court-approved process for modifying the provisionally approved telepsychiatry

22

policy should be used to consider defendants’ expansive proposed modifications to the use of

23

telepsychiatry, see id. at 46. The Special Master found the orders were the law of the case. Id. at

24

18 n.9. He also found defendants could not rely on the court-approved modification process.

25

That process assumed modifications would arise from monitoring, and “defendants’ substantially

26

rewritten policy . . . has not been subject to any monitoring.” Id. at 46. In their objections to that

27

finding, defendants argued that both orders expressly contemplated modifications to CDCR’s

28

telepsychiatry policy and that “subsequent orders implicitly recognize that the issue of the limits

4

1

on telepsychiatry are not settled.” ECF No. 7702 at 21 (citing ECF No. 5928 at 4). Defendants

2

also argued their proposed revised policy was a “reasonable modification” of the provisionally

3

approved policy and therefore properly within the ambit of the process for modifying that policy.

4

Id.

5

In the April 12, 2023 order, the court rejected defendants’ position. It held the

6

October 10, 2017 and July 3, 2018 orders would have to be modified if defendants’ revised

7

telepsychiatry policy were to be adopted; as the Special Master had found, the process for

8

modifying the provisionally approved policy assumed any modification would occur after

9

monitoring, and defendants’ expanded policy had not been subject to any monitoring. ECF No.

10

7807 at 8. Nor had all stakeholders agreed to it. Id.
Defendants now contend the October 10, 2017 and July 3, 2018 orders were superseded

11
12

when the court approved the parties’ agreement that the provisionally approved telepsychiatry

13

policy replaced all prior CDCR policies governing use of telepsychiatry. ECF No. 7831-2 at 5.

14

The March 27, 2020 stipulation and order does not expressly or implicitly provide that it

15

supersedes any prior court orders. See generally ECF No. 6539. Defendants present no authority

16

or evidence to show the court’s provisional approval of this policy overruled its previous orders.
While defendants correctly observe the court’s orders contemplated the possibility of

17
18

modifications to the telepsychiatry policy, they have not shown the court clearly erred when it

19

concluded the process approved in the March 27, 2020 order is inappropriate for consideration of

20

their proposed modifications. As the court has made clear, the burden is on defendants to show

21

the law and facts require modification of the parameters set in the court’s October 10, 2017 and

22

July 3, 2018 orders. The proper procedure for making that showing is through motion practice

23

contemplated by the Federal Rules of Civil Procedure. See ECF No. 7807 at 9; see also

24

September 20, 2018 Order, ECF No. 5928, at 11.

25

For all of the foregoing reasons, IT IS HEREBY ORDERED that:

26

1. Defendants’ May 9, 2023 request for leave to file a motion for reconsideration of the

27
28

court’s April 12, 2023 order, ECF No.7831, is GRANTED;
/////
5

1
2

2. Defendants’ proposed motion for reconsideration, ECF No. 7831-2, is deemed filed
May 9, 2023; and

3

3. Defendants’ May 9, 2023 motion for reconsideration, ECF No. 7831-2, is DENIED.

4

IT IS SO ORDERED.

5

DATED: May 22, 2023.

6