Akhtar v. Mesa et al

Filing 39

MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr. on 6/7/2011 DENYING 33 Motion to Alter or Amend the Judgment. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAVIAD AKHTAR,
NO. CIV. S-09-2733 FCD/GGH

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Plaintiff,
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v.

MEMORANDUM AND ORDER

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J. MESA, et al.,
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Defendants.
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This matter is before the court on plaintiff Javiad Akhtar’s
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motion to alter or amend the judgment entered in this case on
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April 7, 2011.1

(Docket #32.)

Said judgment in defendants’

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favor was entered pursuant to the court’s order of the same date
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adopting the magistrate judge’s findings and recommendations.
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(Docket #31.)

On March 8, 2011, the magistrate judge issued

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findings and recommendations granting defendants’ motion to
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dismiss (1) on the ground of plaintiff’s failure to respond to
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Because oral argument will not be of material
assistance, the court orders this matter submitted on the briefs.
E.D. Cal. L.R. 230(g).
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the motion and (2) alternatively on the merits, finding

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plaintiff’s complaint either barred for failure to exhaust

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administrative remedies or not cognizable under the Eighth

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Amendment.

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findings and recommendations, asking that they serve as his

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“opposition” to the motion.

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objections.

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court adopted the magistrate judge’s decision and entered

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judgment in favor of defendants.

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(Docket #27.)

Plaintiff filed objections to the

Defendants replied to the

After conducting a de novo review of the case, this

Plaintiff, who is now represented by counsel from the UC

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Davis Civil Rights Clinic, contends the court committed “clear

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error” in disregarding material he submitted in support of his

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objections; namely, the Director’s Level Appeal Decisions dated

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May 13 and 28, 2009, which he asserts establish exhaustion of his

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administrative remedies.

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dismissal of his case is “manifestly unjust” because he does not

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understand English and was not aware of the significance of the

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motion to dismiss.

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Plaintiff also contends that the

Where the court’s ruling has resulted in a final judgment or

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order, a motion for reconsideration may be based either on Rule

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59(e) (motion to alter or amend judgment) or Rule 60(b) (motion

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for relief from judgment) of the Federal Rules of Civil

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Procedure.

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Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).

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motion was filed more than ten days after entry of dismissal, the

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court will consider the instant motion under Rule 60(b).

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Fed. R. Civ. P. 59(e) (requiring that all motions submitted

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pursuant to this rule be filed within ten days of entry of

See School Dist. No. 1J, Multnomah County v. ACandS,

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Because plaintiff’s

See

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judgment).
Absent “highly unusual circumstances,” reconsideration of a

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final judgment is appropriate only where (1) the court is

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presented with newly-discovered evidence, (2) the court committed

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“clear error or the initial decision was manifestly unjust,” or

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(3) there is an intervening change in the controlling law.

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School Dist. No. 1J, Multnomah County, 5 F.3d at 1263.

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Here, plaintiff provides no grounds to amend the judgment in
this case.

As set forth in the court’s April 7, 2011 order,

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plaintiff offered “no explanation whatever for having failed

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altogether to file his opposition to the defendants’ motion to

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dismiss at the appropriate time, despite having previously been

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advised as to the requirements for filing a timely opposition to

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a motion to dismiss as well as having been cautioned that failure

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to file an opposition . . . may be deemed a waiver of opposition

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to the motion.”

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discretion to not consider plaintiff’s opposition, and the

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attachments thereto, inappropriately presented by plaintiff for

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the first time in objections.

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emphasized that requiring a district judge to consider evidence

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not previously set before the magistrate judge “would effectively

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nullify the magistrate judge’s consideration of the matter and

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would not help to relieve the workload of the district court.”

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United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000).

(Docket #31.)

It was well within this court’s

The Ninth Circuit has repeatedly

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Moreover, the court notes that even if it were to now

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consider plaintiff’s evidence of the Director’s May 2009 Appeal

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Decisions, those decisions do not establish exhaustion of

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plaintiff’s claims.

In his first amended complaint, plaintiff
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alleges Eighth Amendment claims of deliberate indifference to

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plaintiff’s medical issues.

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concern alleged due process violations plaintiff sustained when

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he was charged with a prison rule violation.

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Director’s decisions do not establish the viability of

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plaintiff’s Eighth Amendment claims in this case.

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ignores in the instant motion that the magistrate judge

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alternatively found that his FAC failed to state a cognizable

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claim under the Eighth Amendment.

The appeal decisions plaintiff cites

Furthermore, the

Plaintiff

Thus, even if the court found

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that plaintiff had properly exhausted his administrative

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remedies, his complaint is nonetheless properly dismissed on Rule

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12(b)(6) grounds.

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Finally, plaintiff’s claimed inability to understand English

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does not provide grounds for relief in this case.

While

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plaintiff is now represented by counsel, who attempt to

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corroborate his claim (see Lakhani Decl. [Docket #33-1]),

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previously plaintiff represented himself.

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plaintiff filed a complaint and first amended complaint as well

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as lengthy objections to the magistrate judge’s findings and

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recommendations.

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understanding of the English language to litigate this case

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according to the rules of the court and governing legal

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standards.

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fact.

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In that capacity,

Clearly, plaintiff has a sufficient

His own actions in this case amply demonstrate this

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Accordingly, the court DENIES plaintiff’s motion to alter or
amend the judgment in this case.
IT IS SO ORDERED.
DATED: June 7, 2011

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FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE

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