Jones v. Frazesn et al

Filing 69

ORDER signed by Circuit Judge Richard C. Tallman on 04/13/10 DENYING 55 Motion for Reconsideration. (Williams, D)

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IN THE UNITED STATES DISTRICT COURT FOR THE E A S T E R N DISTRICT OF CALIFORNIA

A LV IN BERNARD JONES, P la intiff, vs . S . FRAZESN, et al., D e fe n d a n t s . ________________________________

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O R D E R DENYING PLAINTIFF'S M O T IO N FOR RECONSIDERATION

P la intiff Alvin Bernard Jones ("Plaintiff") filed a Motion for Reconsideration o f this Court's Order Granting Defendant's Motion for Sanction of Dismissal. For the following reasons, Plaintiff's motion is DENIED. I B a c kg r ound P la in tiff, a former state prisoner, brought this civil rights action pursuant to 4 2 U.S.C. § 1983, against California Department of Corrections Officers Frazesn, D u d d e r, Ayers, Solarzano, and Bess (collectively "Defendants") asserting an e x c es s iv e force claim under the Eighth Amendment and a due process claim under th e Fourteenth Amendment. The action was filed on December 21, 2007. After s e v e ra l delays, discovery proceeded according to a July 16, 2008, Discovery O rd e r, as well as a June 1, 2009, Supplemental Discovery Order and Scheduling O rd e r. Pursuant to those orders, Plaintiff's deposition commenced on July 30, 2 0 0 9 . He was incarcerated at the time. However, during the deposition, Plaintiff s ta te d that he was unable to continue because he was not feeling well and was

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g o in g to be sick. He asked to return to his cell. The deposition was adjourned and re -n o tic e d for August 25, 2009, shortly after his release from prison. Defendants p ro p e rly confirmed with Plaintiff after his release from prison the second d e p o s itio n date, time, and location. Plaintiff confirmed that he would appear. But on August 25, 2009, Plaintiff failed to appear for the continued d e p os itio n . Defendants waited for approximately one hour. They contacted P la in tiff by phone. Plaintiff advised that he had decided he would not be attending th e deposition. Defendants took a certificate of non-appearance. As a result of Plaintiff's failure to complete his first deposition, this Court w a s forced to reschedule filing deadlines and to continue the trial date in its S e c o n d Supplemental Discovery Order and Scheduling Order in order to ensure th a t discovery was completed before pretrial motions were due. Because there are m o re than 2,000 similar cases by pro se inmates like Plaintiff pending in the E a s te rn District of California, and inadequate numbers of judges available to a d ju d ic a te them, a judicial emergency has been declared by the Ninth Circuit J u d ic ia l Council. More than seventy visiting judges have been designated to help h a n dle the caseload. Available courtrooms are hard to find when a previous trial d a te must be rescheduled. The impact on court operations occasioned by u n c o o p e ra tiv e litigants is not inconsequential. The Second Supplemental D is c o v e ry Order specifically admonished Plaintiff that failure to abide by his o b lig a tio n s to comply with this Court's case management orders would result in th e imposition of sanctions, including, but not limited to, dismissal of this action p u rs u a n t to Local Rule 11-110 (E.D. Cal.). On September 10, 2009, Defendants Frazesn, Dudder, Ayers, and Solarzano m o v e d for summary judgment. On September 17, 2009, Defendant Bess moved fo r summary judgment. Plaintiff failed to respond to either motion. On October 2, 2 0 0 9 , Plaintiff failed to timely file his pretrial statement pursuant to the Second S u p p le m e n ta l Discovery Order. Defendants moved for sanction of dismissal and
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a tto rn e y fees. Plaintiff failed to timely respond. On October 8, 2009, this Court g ra n te d Defendants' motion for sanction of dismissal but denied the motion for a tto rn e y fees. Judgment was entered in favor of Defendants the same day. On October 14, 2009, Plaintiff timely filed a motion for reconsideration. On N o ve mb e r 5, 2009, before Defendants filed a response to Plaintiff's motion for re c o ns id e ra tio n, Plaintiff appealed this Court's judgment. Apparently believing this C o urt lacked jurisdiction over Plaintiff's pending motion for reconsideration, D e fe nd a nts failed to file a response. On January 13, 2010, this Court received no tic e that the Court of Appeal has held Plaintiff's appeal in abeyance pending this C o urt's resolution of Plaintiff's pending motion for reconsideration. On January 14, 2 0 1 0 , this Court ordered Defendants to file a response to Plaintiff's motion. On Fe b rua ry 12, 2010, Defendant Bess filed a response. On February 17, 2010, D e fe nd a nts Frazesn, Dudder, Ayers, and Solarzano filed their response. T he Court now denies Plaintiff's Motion for Reconsideration. II P la intif f 's Motion for Reconsideration A motion for reconsideration must be based upon either Federal Rule of C ivil Procedure ("Rule") 59(e) (motion to alter or amend a judgment) or Rule 6 0 (b ) (relief from judgment). See School Dist. No. 1J, Multnomah County, Or. v. A C a n d S , Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Rule 59(e) offers "an e xtra o rd ina ry remedy, to be used sparingly in the interests of finality and c o ns e rva tio n of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th C ir. 2003) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 5 9 .3 0 [4 ] (3d ed. 2000)). Similarly, courts grant relief under Rule 60(b) only in "e xtra o rd ina ry circumstances." United States v. Washington, 593 F.3d 790, 799 (9 th Cir. 2010). Plaintiff does not specify which rule provides the basis for his mo tio n, therefore the Court will address each in turn.

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III R e c ons id e r a tion Under Rule 59(e) If a plaintiff files a motion for reconsideration within ten days of the entry of jud gme nt, courts will ordinarily construe it as a motion to alter or amend judgment und e r Rule 59(e). American Ironworks & Erectors, Inc. v. North American Const. C o r p , 248 F.3d 892, 898­99 (9th Cir. 2001). Plaintiff filed his motion six days a fte r entry of judgment. The Court therefore construes his motion as a motion for re c o ns id e ra tio n under Rule 59(e). A Rule 59(e) motion is one that seeks to "alter or amend" a previous jud gme nt entered by the court. Fed. R. Civ. P. 59(e). The Court considers P la intiff's motion, even though it "simply rehashes arguments" made in his c o mp la int without substantively addressing the Court's imposition of the sanction o f dismissal. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9 th Cir. 1984). Absent highly unusual circumstances, a motion under Rule 59(e) s ho uld not be granted unless: (1) a movant presents new evidence; (2) the court c o mmitte d clear error; or (3) there is an intervening change in controlling law. Carroll, 342 F.3d at 945. New evidence may be grounds for granting a motion for reconsideration if: (1 ) movant did not possess the information before defendants moved for dismissal; (2 ) movant's due diligence to discover the new evidence is shown or inferred; and (3 ) the evidence is of such a material nature that it would likely change the o utc o me . Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 2 1 0 ­ 1 2 (9th Cir. 1987). In the present case, Plaintiff offers no new evidence, re nd e ring these criteria unavailing in support of his motion. R e c o ns id e ra tio n may be appropriate if the court committed clear error or re nd e re d a manifestly unjust decision. Multnomah, 5 F.3d at 1263. Here, Plaintiff s e e ms to argue that the Court lacked jurisdiction to rule on Defendants' motion,
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re s ulting in clear error. This argument lacks merit. See 28 U.S.C. § 291(b). In a d d itio n, the Court incorporates its previous Order Granting Defendants' Motion fo r Sanction of Dismissal. Docket No. 52, 2009 WL 3254905 (E.D. Cal.). Plaintiff's argument that he failed to appear at his continued deposition as a result o f an unidentified handicap or because Defendants did not pay for Plaintiff's tra ns p o rta tio n does not change the Court's previous evaluation of the factors id e ntifie d in Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Based on uncontested declarations contained in the record, the Court finds a s fact that before the close of his first deposition, Plaintiff specifically told D e fe nd a nts he would have no trouble attending his continued deposition. In a d d itio n, when Defendants telephoned Plaintiff to inquire as to the cause of his fa ilure to appear, he did not state that he was handicapped or unable to pay for tra ns p o rta tio n. Instead, he claimed that he had consulted an unidentified attorney w ho advised him not to appear. Certificate of Nonappearance, Docket No. 43, A tta c hme nt 1. Plaintiff does not address why he failed to timely oppose D e fe nd a nts ' Motion for Sanction of Dismissal or Defendant's Motion for Summary J ud gme nt. Nor does he address why he failed to timely file a pretrial statement. Plaintiff fails to offer any credible explanation for wilfully disobeying the orders of this Court, and for those reasons, the Court cannot conclude that its prior order w a s clearly erroneous or manifestly unjust. A n intervening change in the law may also warrant granting a motion to alter o r amend under Rule 59(e). Carroll, 342 F.3d at 945. However, the present case invo lve s no such change. A c c o rd ingly, Plaintiff's Motion for Reconsideration fails to meet the s ta nd a rd for relief under Rule 59(e). IV R e c ons id e r a tion Under Rule 60(b)
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A ltho ugh inapplicable in the present case due to the timing1 of Plaintiff's filing, the Court notes that Plaintiff's argument would also fail under Rule 60(b). Rule 60(b) allows a party to seek relief and request reopening of his case due to mis ta k e , newly discovered evidence, fraud, void judgment, satisfied judgment, or fo r any other reason that justifies relief. Harvest, 531 F.3d at 744­45. Under Rule 60(b)(1), the court may relieve a party from final judgment due to mistake, inadvertence, surprise, or excusable neglect. Fed. R. Civ. P. 60(b)(1). While Plaintiff does not articulate any of these grounds as a basis for his Motion fo r Reconsideration, he does offer several unfounded excuses for the actions that c o ns titute d the grounds upon which Defendants' Motion for Sanction of Dismissal w a s granted. "[I]nadvertence, ignorance of the rules, or mistakes construing the rule s do not usually establish 'excusable' neglect." Pioneer Inv. Servs. Co. v. B r u n s wic k Assocs. Ltd. Partnership, 507 U.S. 380, 392 (1993). To determine w he the r Plaintiff's actions constitute excusable neglect, the Court applies the Pio n e e r factors: (1) the danger of prejudice to the nonmoving party; (2) the length o f delay; (3) the reason for the delay, including whether it was within the re a s o na b le control of the movant; and (4) whether the moving party's conduct was in good faith. See id. at 395. Plaintiff advances five arguments in support of his motion. First, he states tha t he would suffer prejudice if required to complete his deposition prior to the D e fe nd a nts ' production of an allegedly incriminating videotape. Second, Plaintiff s ta te s that Defendants would suffer no prejudice from an in-camera review of the vid e o ta p e . Third, Plaintiff asserts that Defendants suffered no prejudice as a result o f Plaintiff's failure to appear at the deposition. Last, Plaintiff provides two

The court considers a motion for reconsideration a Rule 60(b) motion only if file d more than ten days after entry of judgment. Harvest v. Castro, 531 F.3d 737, 7 4 5 ­4 6 (9th Cir. 2008).
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e xc us e s for failing to comply with Court orders: (1) a physical handicap that p re ve nte d him from attending his deposition; and (2) Defendants' failure to fina nc ia lly compensate Plaintiff for his appearance at the deposition. P la intiff's arguments are not credible and are rejected as unconvincing. The Pio n e e r factors require the consideration of potential prejudice to the nonmoving p a rty. Id. at 395. This Court has already concluded that Plaintiff's delays risked p re jud ic e to Defendants by hindering their efforts to properly prepare for trial. Although Plaintiff asserts that a physical disability prevented his attendance at the d e p o s itio n, Plaintiff offers no evidence that he communicated this concern to D e fe nd a nts or that he attempted to reschedule the deposition in a manner that might accommodate his disability. See Fed. R. Civ. P. 30(b)(4), (c)(3). Furthermore, Plaintiff fails to explain how the disability prevented him from c o mp lying with the Orders of this Court. Applying the Pioneer factors, the Court c o nc lud e s Plaintiff's actions did not constitute excusable neglect. Under Rule 60(b)(2), new evidence may be grounds for granting a motion fo r reconsideration, but Plaintiff offers no new evidence, rendering this criterion ina p p lic a b le . Fed. R. Civ. P. 60(b)(2). R ule 60(b)(3) offers relief if the opposing party engages in fraud, mis re p re s e nta tio n, or misconduct. Fed. R. Civ. P. 60(b)(3). Plaintiff carries the b urd e n to prove the existence of such misconduct by clear and convincing e vid e nc e . Atchison, T. & S.F. Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1 9 5 7 ). Here, Plaintiff seems to argue that alleged misconduct on behalf of D e fe nd a nts prevented him from fully and fairly presenting his case. De Saracho v. C u s to m Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). Plaintiff re p e a te d ly insists Defendants possess a videotape that would change the result of this Court's action. Defendants declare no such videotape has ever existed. See A ye rs Decl., Docket No. 67, Ex. 3. Plaintiff has not established that Defendants
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c o mmitte d any misconduct. Atchison, 246 F.2d at 849. Fina lly, under Rule 60(b)(6) the Court may grant relief for any other reason jus tifying a remedy. United States v. Alpine Land & Reservoir Co., 984 F.2d 1 0 4 7 , 1049 (9th Cir. 1993). Relief is available only where extraordinary c irc ums ta nc e s prevented the litigant from seeking earlier, more timely relief. Id. In the present case, Plaintiff offers no convincing explanation for his failure to c o mply with the Court's Orders or to respond to Defendants' motions. Moreover, this Court expressly warned Plaintiff that "failure to abide by obligations under this C o urt's [Orders] . . . may result in an order of sanctions, including, but not limited to , dismissal of this action." Because the Court cannot grant relief when the party s e e k ing reconsideration has ignored his obligation to comply with court rules and p ro c e d ure s for the efficient conduct of litigation, Plaintiff's motion fails on this gro und as well. Id. V Conclusion P la intiff's Motion for Reconsideration is DENIED. T he Clerk of the Court shall send uncertified copies of this Order by U.S. ma il to Plaintiff at his address of record and by electronic notice to Plaintiff's c o uns e l and Defendants' counsel. IT IS SO ORDERED. DATED this 13th day of April, 2010.

/s / Richard C. Tallman UNITED STATES CIRCUIT JUDGE S itting by designation

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