Espinoza v. McDonald

Filing 42

ORDER signed by Chief Judge Morrison C. England, Jr. on 2/14/2013 ORDERING 32 Plaintiff's motion to amend the judgment is DENIED; Plaintiff's 36 motion for certificate of appealability is DENIED; and the Clerk of the Court is directed to process Plaintiff's 2/28/2012 appeal. (cc: USCA #13-15075) (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GABRIEL ESPINOZA,

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Plaintiff,

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No. 2:11-cv-03358-MCE KJN P

vs.

ORDER

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M.D. McDONALD, et al.,

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Defendants.
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On December 5, 2012, the Court granted Defendant’s motion to dismiss this

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action, and judgment was entered. On December 17, 2012, Plaintiff filed a motion to amend the

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judgment pursuant to Rules 59(e) and 35 of the Federal Rules of Civil Procedure. Plaintiff asks

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the Court to amend the judgment to allow him to be examined by an outside doctor, as provided

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in Rule 35 of the Federal Rules of Civil Procedure.

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Under Rule 59(e), a district court may, in its discretion, alter or amend a judgment

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if “the district court committed clear error or made an initial decision that was manifestly

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unjust.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). Rule 59(e),

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however, is an “extraordinary remedy, to be used sparingly in the interests of finality and

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conservation of judicial resources.” Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890

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(9th Cir. 2000).
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Amendment or alteration is appropriate under Rule 59(e) if: (1) the district court is presented

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with newly-discovered evidence; (2) the district court committed clear error or made an initial

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decision that was manifestly unjust; or (3) there is an intervening change in controlling law.

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Zimmerman, 255 F.3d at 740. This showing is a “high hurdle.” Weeks v. Bayer, 246 F.3d 1231,

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1236 (9th Cir. 2001). A judgment is not properly reopened “absent highly unusual

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circumstances.” Id.

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Here, Defendants’ motion to dismiss was granted based on Plaintiff’s failure to

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first exhaust administrative remedies as required under the Prison Litigation Reform Act of

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1995. 42 U.S.C. § 1997e(a). Plaintiff fails to identify any alleged error made in granting the

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motion, or demonstrate that Plaintiff exhausted his administrative remedies prior to suit. Rather,

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Plaintiff seeks amendment of the judgment to provide that Plaintiff be examined by an outside

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doctor. As argued by Defendants (ECF 34 at 2), the dismissal of this case was not based on

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Plaintiff’s medical condition or his ability to see a non-prison doctor. (See ECF 24; 30.) Rather,

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the dismissal was based on Plaintiff’s failure to exhaust administrative remedies, a condition

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precedent to Plaintiff filing suit in federal court. Thus, Plaintiff failed to demonstrate that the

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dismissal was erroneous or unjust, and Plaintiff’s motion to amend the judgment is denied.

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In addition, on January 4, 2013, Plaintiff filed a motion for certificate of

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appealability, in which he states he does not know if he needs to file for a certificate of

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appealability. Plaintiff is advised that certificates of appealability are only required in habeas

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corpus proceedings or a proceeding under 28 U.S.C. § 2255. 28 U.S.C. § 2253. Thus, Plaintiff

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does not need a certificate of appealability in this civil rights action, and his request is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s December 17, 2012 motion to amend the judgment (ECF No. 32) is

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DENIED;

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2. Plaintiff’s January 4, 2013 motion for certificate of appealability (ECF No. 36)
is DENIED; and

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3. The Clerk of the Court is directed to process Plaintiff’s December 28, 2012

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appeal (ECF No. 33).

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DATED:

February 14, 2013

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__________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

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