Walker v. Mohadjer et al

Filing 41

ORDER signed by Senior Judge William B. Shubb on 10/9/2013 DENYING 36 Motion for Reconsideration; CONSTRUING 35 Motion for a Certificate of Appealability as a Notice of Appeal of the 32 Order denying Plaintiff's Requests for Immendiate Injunctive Relief. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY E. WALKER,

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No. 2:13-cv-1193 WBS AC P

Plaintiff,
v.

ORDER

MOHADJER, Clinical Psychologist, et al.,
Defendants.

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Plaintiff in this prisoner civil rights action has filed a request for reconsideration of the

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district court’s September 13, 2013 order denying immediate injunctive relief (ECF No. 32).

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Plaintiff contends that the court failed to consider that defendant Mohadjer had not responded to

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the request for a temporary restraining order, as directed by the magistrate judge. ECF No. 36.

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Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay

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of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of

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judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party

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seeking reconsideration of a district court's order must brief the “new or different facts or

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circumstances [which] were not shown upon such prior motion, or what other grounds exist for

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the motion.” Id. The rule derives from the “law of the case” doctrine which provides that the

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decisions on legal issues made in a case “should be followed unless there is substantially different

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evidence . . . new controlling authority, or the prior decision was clearly erroneous and would
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result in injustice.” Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981);

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see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064

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(1986).

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Courts construing Federal Rule of Civil Procedure 59(e), providing for the alteration or

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amendment of a judgment, have noted that a motion to reconsider is not a vehicle permitting the

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unsuccessful party to “rehash” arguments previously presented, or to present “contentions which

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might have been raised prior to the challenged judgment.” Costello v. United States, 765 F.Supp.

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1003, 1009 (C.D. Cal. 1991); see also F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986);

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Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa. 1991). These holdings

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“reflect[] district courts' concerns for preserving dwindling resources and promoting judicial

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efficiency.” Costello, 765 F.Supp. at 1009.

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By order filed on July 24, 2013, the magistrate judge ordered defendant Mohadjer to

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respond within ten days to plaintiff’s request for immediate injunctive relief. ECF No. 15. In a

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concurrently filed order, the court found the first amended complaint appropriate for service upon

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defendant Mohadjer. ECF No. 14. Because defendant Mohadjer had not yet been served, the

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Attorney General’s Office specially appeared and timely provided the required response

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addressing plaintiff’s mental health treatment status and his allegations of imminent and

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irreparable harm (ECF No. 19). See ECF No. 20 (Findings and Recommendations) at 2.

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Plaintiff’s protestations notwithstanding, no further response was required from Mohader

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personally. Plaintiff does not present any substantive basis for revisiting the ruling at issue.

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As an alternative to injunctive relief upon reconsideration, plaintiff requests the issuance

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of a “certificate of appeal.” ECF No. 35. Pursuant to 28 U.S.C. § 1292(a)(1), the courts of appeal

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have jurisdiction over an interlocutory order of the district courts “refusing” an injunction.

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Ordinarily, an order granting or denying a temporary restraining order (“TRO”) is not an

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appealable interlocutory order. SEIU v. Nat’l Union of Healthcare Workers, 598 F.3d 1060, 1067

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(9th Cir. 2010). However, an order regarding a TRO that possesses the qualities of a preliminary

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injunction is immediately appealable under 28 U.S.C. § 1292(a)(1). Id. Here, plaintiff sought a

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temporary restraining order and/or a preliminary injunction. See ECF No. 31 at 1 (requesting a
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“TRO/injunction”); see also ECF No. 17 at 2 (seeking preliminary injunction under Fed. R. Civ.

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P. 65(a)). The court considered and rejected these requests under the standards for preliminary

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injunctive relief as well as those applicable to TROs. ECF No. 20 (Findings and

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Recommendations) at 2-3; ECF No. 32 (Order denying immediate injunctive relief).

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Accordingly, the court concludes that the order denying preliminary injunctive relief is an

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appealable order.

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However, plaintiff must file a notice of appeal in order to proceed. The court will direct

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that plaintiff’s request for a “certificate of appeal” be construed as a notice of appeal of the

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interlocutory order denying plaintiff’s motions for immediate injunctive relief.

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Therefore, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 36) is denied; and

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2. Plaintiff’s request for a certificate of appeal (ECF No. 35) is construed as a notice of

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appeal of the September 13, 2013 Order denying plaintiff’s request for immediate injunctive

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relief (ECF No. 32).

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Dated: October 9, 2013

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/walk1193.rec

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