Lal v. Felker et al

Filing 211

ORDER signed by Judge Kimberly J. Mueller on 11/5/13 DENYING 201 , 206 , and 208 . (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AZHAR LAL,

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Plaintiff,

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Civ. No. 2:07-CV-2060 KJM EFB P

v.

ORDER

T. FELKER, et al.,

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Defendants.

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I. BACKGROUND

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On September 30, 2013, this court adopted the magistrate judge’s findings and

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recommendations and granted the motion for summary judgment filed by defendants Baltzer,

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Barton, Callison, Carter, Cullison, Garrison, Miller and Yeager on plaintiff’s Eighth Amendment

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claims. ECF No. 200.
On October 7, 2013, plaintiff filed a motion for reconsideration of this order,

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without citation to the Federal Rules of Civil Procedure. ECF No. 201. Defendants opposed this

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motion on October 24, 2013. ECF No. 205.
On October 24, 2013, plaintiff filed a motion to amend the judgment, citing both

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Rule 54 and Rule 59 of the Federal Rules of Civil Procedure. ECF No. 206. On the same day he

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filed a notice of appeal and a request for a certificate of appealability. ECF Nos. 207, 208.

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II. THE MOTIONS FOR RECONSIDERATION

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A. Standard

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twenty-eight days of the entry of the judgment. Although the Rule does not list specific grounds

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for such a motion, the Ninth Circuit has said that a Rule 59(e) motion may be granted if “(1) the

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district court is presented with newly discovered evidence, (2) the district court committed clear

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error or made an initial decision that was manifestly unjust, or (3) there is an intervening change

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in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). This

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court has “wide discretion” when considering such a motion. Turner v. Burlington Northern

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Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). The rule provides “an ‘extraordinary

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remedy, to be used sparingly in the interests of finality and conservation of judicial resources.’”

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Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting James

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Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed. 2000)). A party filing a motion for

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reconsideration under this rule should not “ask the Court ‘to rethink what the Court has already

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thought through,’ merely because a plaintiff disagrees with the Court’s decision.” Ramsey v.

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Arizona, No. 05–3130–PHX–JAT, 2006 WL 2711490, at *1 (D. Ariz. Sep. 21, 2006) (quoting

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Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Cal. 1983)). Such a

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motion “‘may not be used to relitigate old matters, or to raise arguments or present evidence that

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could have been raised prior to the entry of judgment.’” Mazalin v. Safeway, Inc., No. CIV S-10-

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1445 KJM CMK, 2012 WL 5387704, at *1 (E.D. Cal. Nov. 1, 2012) (quoting Exxon Shipping Co.

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v. Baker, 554 U.S. 471, 485 n.5 (2008)).

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Under Rule 59(e), a party may move to “alter or amend a judgment” within

As noted, plaintiff cites to Rule 54 as well as Rule 59 in urging reconsideration.

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Federal Rule of Civil Procedure 54(b) authorizes courts to revise “any order or other decision . . .

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that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties

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. . . at any time before the entry of a judgment adjudicating all the claims and all the parties' rights

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and liabilities.” FED. R. CIV. P. 54(b). The Ninth Circuit has said a motion to amend the

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judgment “is a proper vehicle for seeking reconsideration of a summary judgment ruling,” Tripati

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v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (per curiam), though some district courts in this
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circuit have found a Rule 54 motion to be proper. Regents v. Univ. of Calif. v. Bernzomatic, No.

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2:10-CV-1224 FCD GGH, 2011 WL 666912, at *2 (E.D. Cal. Feb. 11, 2011) (relying on Rule 54

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in deciding whether to reconsider the denial of summary judgment). The standards are the same:

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reconsideration under Rule 54 is appropriate where there has been an intervening change in

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controlling law, new evidence has become available, or it is necessary to correct clear error or

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prevent manifest injustice. Cachil Dehe Band of Wintun Indians v. California, 649 F. Supp. 2d

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1063, 1069 (E.D. Cal. 2009). Courts rely on Rule 59 cases when discussing the standard for Rule

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54 motions. See, e.g., Drover v. LG Elecs. USA, Inc., No. 2:12–CV–510 JCM (VCF), 2013 WL

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632103, at *1 (D. Nev. Feb. 19, 2013) (considering a motion to reconsider an interlocutory order

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and citing, among other things, School Dist. No. IJ, Multnomah Cnty. Or. v. ACandS, Inc., 5 F.3d

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1255 (9th Cir. 1993), a Rule 59(e) case); see also Cachil Dehe Band of Wintun Indians, 649 F.

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Supp. 2d at 1069 (same).

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Plaintiff’s notice of appeal does not divest this court of jurisdiction to determine

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the motion to amend the judgment under Rule 59(e). Cf. Miller v. Marriott Int’l Inc., 300 F.3d

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1061, 1063 (9th Cir. 2002); see FED. R. APP. P. 4 (a)(4)(A)(iv).

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B. Motion Filed October 7, 2013 (ECF No. 201)

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Plaintiff has provided defendant Miller’s answers to interrogatories, dated

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September 3, 2009; results of blood tests from 2006; copies of health care services request forms

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from 2006; a copy of an informed consent form for Risperdal from 2006; and copies of refusal of

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examination forms from 2004 and 2005. He has not claimed he did not have access to these

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materials before he filed his opposition to defendants’ motion for summary judgment, but rather

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asks the court to reconsider its previous order “because of additional evidence which shows

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defendant Miller had acted with deliberate indifference. . . .” ECF No. 201 at 2. He also suggests

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that the refusal of treatment forms from earlier years shows “this was the appropriate procedure to

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be followed,” and so the absence of any such forms from 2006 shows he did not refuse his insulin

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as defendants claim. Id. at 3. Once again, he has made no showing that this evidence was

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unavailable when he filed his opposition to the motion. Plaintiff has not shown he is entitled to

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reconsideration on these grounds.
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C. Motion Filed October 24, 2013 (ECF No. 206)

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Although the grounds for this motion are not totally clear, plaintiff appears to

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challenge the magistrate judge’s refusal to consider plaintiff’s opposition to defendant’s reply.

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See ECF No. 194 at 1 n.1; ECF No. 186. As the reply did not raise new issues or present new

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evidence, the sur-reply was improper and striking it was not error. See Carr v. Allied Waste Sys.,

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419 Fed. App’x 728 (9th Cir. 2011) (affirming district court’s action in striking an unauthorized

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sur-reply); El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003) (stating a court may

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permit a party to file a sur-reply to counter new arguments or evidence in a reply to an

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opposition); Jackson v. Palombo, No. 1:10–CV–01129 SKO PC, 2012 WL 1345784, at *1 n.5

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(E.D. Cal. Apr. 16, 2012) (party does not have the right to file a sur-reply, nor is one

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contemplated by the federal rules).

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Plaintiff also argues, somewhat as an aside, that he had still not received the

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policies and procedures concerning “diabetic lines” nor has learned why defendant Flores was

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fired from CDCR. ECF No. 206 at 4, ¶ 6. Nothing suggests he was prevented from making a

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motion under Rule 56(d) of the Federal Rules of Civil Procedure to continue resolution of the

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summary judgment motion so he could pursue additional discovery; nothing he has presented in

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the instant motion satisfies the Rule 56(d) requirements. See Terrell v. Brewer, 935 F.2d 1015,

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1018 (9th Cir. 1991) (stating that party seeking more time under Rule 56(d) must show what facts

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he hopes to discover to raise a material issue of fact). This motion is similarly without merit.

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III. REQUEST FOR CERTIFICATE OF APPEALABILITY (ECF No. 208)

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An appeal may not be taken to the Court of Appeals from the final order in a

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habeas proceeding unless the court issues a certificate of appealablity. 28 U.S .C.

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§ 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). Plaintiff does not need a

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certificate of appealability in this civil rights action, however. Espinoza v. McDonald, No. 2:11–

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CV–03358 MCE KJN P, 2013 WL 595287, at *1 (E.D. Cal. Feb. 14, 2013).

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IT IS THEREFORE ORDERED:

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1. Plaintiff’s motions for reconsideration, ECF Nos. 201 & 206, are denied; and

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2. Plaintiff’s motion for a certificate of appealability, ECF No. 208, is denied.

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Dated: November 5, 2013.

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UNITED STATES DISTRICT JUDGE

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