Brodheim v. Dickinson, et. al.

Filing 109

ORDER signed by Judge Lawrence K. Karlton on 5/6/13 ORDERING that Plaintiff's motion for reconsideration 63, is GRANTED; The Clerk is directed to re-open this case; and Plaintiff may, within 21 days of the date of this order, file an amended complaint omitting his ex post facto claims. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BRODHEIM,
NO. CIV. S-05-1512 LKK/GGH
Plaintiff,

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v.
LOUIE DININNI, et al.,
Defendants.

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/
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MICHAEL BRODHEIM,
Plaintiff,

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NO. CIV. S-06-2326 LKK/GGH
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v.
M. VEAL, et al.,
O R D E R

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Defendants.
/

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Plaintiff in the civil rights case is a California state

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prisoner serving a term of imprisonment of 25 years to life with

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the possibility of parole, for the crime of murder.

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Dininni, Civ. S-05-1512, Amended Complaint (“Complaint”) (ECF No.

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Brodheim v.

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47) ¶ 5.1 He

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California’s parole system violates his rights under the Due

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Process and Ex Post Facto clauses of the U.S. Constitution.

has

filed

this

civil

rights

case alleging that

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On March 29, 2012, the Magistrate Judge ordered plaintiff to

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“show cause why it [the civil rights complaint] should not be

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dismissed in whole or in part as duplicative of, or subsumed

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within, the class action in Gilman v. Brown, Case No. Civ-S-05-0830

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LKK GGH, or simply dismissed as moot.”2

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(“OSC”) (ECF No. 51) at 2.

Order of March 29, 2012

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On May 7, 2012, the Magistrate Judge filed Findings and

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Recommendations, finding that plaintiff was a class member of

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Gilman, and recommending to this court that the civil rights

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complaint should accordingly be dismissed in its entirety, without

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On May 23, 2005, plaintiff joined the lawsuit filed by
Richard M. Gilman, as a co-plaintiff.
See Gilman v. Welch, ECF
No. 5 (amended complaint), 2:05-cv-830 LKK (E.D. Cal. May 23,
2005). On July 27, 2005, the Magistrate Judge assigned to the case
severed plaintiff from the Gilman action, which at the time was an
individual action, not a class action. Order of July 27, 2007 (ECF
No. 14). On March 7, 2007, the Magistrate Judge stayed all
discovery in this case. Order of March 7, 2007 (ECF No. 42). On
March 4, 2009, this court certified the Gilman matter as a Rule
23(b)(2) class action. Gilman v. Davis, ECF No. 182, 2:05-cv-830
LKK (E.D. Cal. March 4, 2009) (Karlton, J.).
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In the related habeas case, Brodheim v. Dickinson, 2:06-cv2326 LKK (E.D. Cal.), plaintiff notified the court that the Board
of Parole Hearings had determined to grant him parole at a January
11, 2012 hearing. However, on June 8, 2012, the Governor reversed
the Board, and plaintiff was accordingly denied parole.
See
Brodheim v. Dickinson, supra, ECF No. 92 (Joint Status Report).
It appears that the Board ruled in plaintiff’s favor again on
January 8, 2013, but the Governor will have until June 2013 to
review (reverse, affirm or remand) that ruling (assuming the Board
does not re-visit its decision before then).
See Brodheim v.
Dickinson, supra, ECF No. 102.
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prejudice to the ruling in the Gilman class.

Order of May 7, 2012

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(ECF No. 56).

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and Recommendations in full, and ordered this civil rights case

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dismissed “without prejudice to the ruling in the Gilman class.”

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Order of August 24, 2012 (ECF No. 61).

On August 24, 2012, this court adopted the Findings

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Plaintiff now seeks reconsideration of the August 24, 2012

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Order on the grounds that after that Order issued, this court de-

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certified the Gilman class with respect to the Due Process claims,

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and the Gilman plaintiffs have abandoned their Due Process claims.3

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Plaintiff’s Motion for Reconsideration of August 24, 2012 Order

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(ECF No. 63).

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Statement of Non-Opposition).

Defendants have not filed an opposition (nor a

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The court may grant plaintiff relief from a prior order if

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applying it prospectively “is no longer equitable,” or for “any

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other reason that justifies relief.”

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&

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plaintiff’s entire case – including the Due Process claims – was

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that it was subsumed within the Gilman class action.

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has now been undermined by subsequent events.

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plaintiff’s Due Process claims are no longer subsumed within

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Gilman,

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plaintiffs have abandoned those claims.

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supra, ECF Nos. 445 (de-certifying the class) & 432 at 4-5

(b)(6).

as

The

that

basis

class

for

has

this

been

Fed. R. Civ. P. 60(b)(5)

court’s

prior

decertified

dismissal

of

That basis

Specifically,

and

the

Gilman

See Gilman v. Brown,

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Plaintiff has not sought reconsideration of the court’s
dismissal of his ex post facto claims, nor has he sought permission
to opt out of the Gilman classes as they relate to the ex post
facto claims.
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(abandoning

“the

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Swarthout v. Cooke, 131 S. Ct. 859 (2011)).

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1.

due

process

claims”

that

survive

Accordingly:

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remaining

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Plaintiff’s motion for reconsideration (ECF No. 63), is

GRANTED;

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2.

The Clerk is directed to re-open this case; and

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3.

Plaintiff may, within 21 days of the date of this order,

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file an amended complaint omitting his ex post facto claims.4
IT IS SO ORDERED.
DATED: May 6, 2013.

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The Due Process claims do not appear to be frivolous on
their face. See Gilman v. Brown, 2012 WL 1969200 (E.D. Cal. 2012)
(Karlton, J.) (denying defendants’ motion to dismiss prisoners’ Due
Process claims regarding the California parole system on the basis
of Greenholtz v. Inmates of the Nebraska Penal and Correction
Complex, 442 U.S. 1 (1979), and Swarthout v. Cooke, 131 S. Ct. 859
(2011)).
Accordingly, amendment of the complaint appears
appropriate.
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