Ramey v. Franco et al

Filing 67

ORDER signed by District Judge John A. Mendez on 1/15/2019 GRANTING 50 motion for reconsideration. The 43 order withdrawing the 2/8/2018 findings and recommendations and denying defendant's motion to revoke plaintiff's in forma pauperis status is AFFIRMED. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHNNEY RAMEY,

12

Plaintiff,

13
14

No. 2:16-cv-2107 JAM CKD P

v.

ORDER

J. FRANCO, et al.,

15

Defendants.

16
Defendant Anderson has filed a motion for reconsideration of the Magistrate Judge’s

17
18

March 19, 2018 order denying his motion to revoke plaintiff’s in forma pauperis status. (ECF

19

No. 50.) For the reasons set forth below, the March 19, 2018 order will be affirmed.

20
21

I.

Procedural History
On August 17, 2017, defendant Anderson filed a motion to revoke plaintiff’s in forma

22

pauperis status. (ECF No. 28.) The Magistrate Judge initially issued findings and

23

recommendations that recommended granting the motion and requiring plaintiff to pay the entire

24

filing fee before being permitted to proceed because he had not shown that he was in imminent

25

danger of serious physical harm. (ECF No. 39.) Plaintiff filed objections to the findings and

26

recommendations in which he claimed that though he had been living in a building where

27

defendant did not work, defendant had recently been reassigned to his building, exposing him to a

28

constant risk that defendant would reinitiate the kind of harassment that provides the basis for this
1

1

lawsuit. (ECF No. 42.) Defendant did not respond to the objections. Upon consideration of the

2

objections, the Magistrate Judge withdrew the findings and recommendations and denied the

3

motion to revoke plaintiff’s in forma pauperis status on March 19, 2018. (ECF No. 43.) Two

4

months later, defendant filed a motion for reconsideration of the order denying the motion to

5

revoke plaintiff’s in forma pauperis status. (ECF No. 50.)

6
7

II.

Motion for Reconsideration
Local Rule 230(j) requires that a motion for reconsideration state “what new or different

8

facts or circumstances are claimed to exist which did not exist or were not shown upon such prior

9

motion, or what other grounds exist for the motion; and why the facts or circumstances were not

10

shown at the time of the prior motion.” L.R. 230(j)(3)-(4). Magistrate Judge orders shall be

11

upheld unless “clearly erroneous or contrary to law.” L.R. 303(f); 28 U.S.C. § 636(b)(1)(A); Fed.

12

R. Civ. P. 72(a).

13

Defendant requests that the court reconsider the March 19, 2018 order denying his motion

14

to revoke plaintiff’s in forma pauperis status because the new information provided in plaintiff’s

15

objections, which the Magistrate Judge relied upon in denying the motion, is not true. (ECF No.

16

50-1 at 4-5.) Specifically, he asserts that while he does work at the prison where plaintiff is

17

housed, he has not been reassigned to the building where plaintiff is housed. (Id.) He claims that

18

he did not address this fact in the initial motion or reply because it was not raised until plaintiff’s

19

objections, and that he did not respond to plaintiff’s objections because “defense counsel and his

20

supervisor expected that the Court would reject Plaintiff’s newly-added facts, or would invite

21

additional briefing on the issue.” (Id. at 5.) Defendant further states that he did not object to the

22

denial of his motion because the Magistrate Judge denied the motion by order instead of

23

submitting findings and recommendations, and an initial miscommunication led counsel to

24

believe that the newly alleged fact was true. (Id. at 3, 5.)

25

A. Grounds for Reconsideration

26

With respect to defendant’s claim that he believed the court would reject the new facts or

27

invite further briefing, it was well within the court’s discretion to consider the new fact, Sossa v.

28

Diaz, 729 F.3d 1225, 1230-31 (9th Cir. 2013), and defendant’s assumption that the court would
2

1

either reject the new fact or request briefing, when defendant already had the option to respond to

2

the objections, does not establish adequate grounds for reconsidering the March 19, 2018 order.

3

As to defendant’s claim that he did not object to the denial of his motion because it was denied by

4

order, Federal Rule of Civil Procedure 72(a) provides parties with a fourteen-day window for

5

objecting to orders issued by a magistrate judge on nondispositive matters. However, while

6

defendant’s mistaken assumptions as to what actions the court would take do not warrant

7

reconsideration of the motion, his claim that he initially did not pursue the matter because of a

8

miscommunication that led counsel to believe the new fact was true does. Counsel’s declaration

9

demonstrates that after discovering the misunderstanding, he promptly submitted the pending

10

motion for reconsideration. (ECF No. 50-3 at 2-3, ¶¶ 5-10.)

11

B. Discussion

12

In originally finding that plaintiff had failed to demonstrate he was under imminent danger

13

at the time he filed the second amended complaint, the Magistrate Judge found that

14

[a]ccording to plaintiff’s allegations, defendant Anderson had ceased
banging on the cell bars no later than December 2016, which was
over four and a half months prior to the filing of the second amended
complaint. (ECF No. 20 at 2, 5-6, 10-11.) Plaintiff’s opposition to
the motion to revoke his IFP status also states that the harassment
took place over a fixed period of time and makes no claim that the
danger was ongoing up to or through the filing of the second
amended complaint. (ECF No. 34.) The court is therefore unable to
find that plaintiff has demonstrated that he was in imminent danger
of serious physical injury at the time of filing the second amended
complaint and will recommend that defendant’s motion to revoke
plaintiff’s IFP status be granted.

15
16
17
18
19
20
21
22

(ECF No. 39 at 11.)
After considering plaintiff’s objections to the findings and recommendations, the

23

Magistrate Judge withdrew the findings and recommendations and found that plaintiff had

24

adequately demonstrated that he fell within the exception outlined in § 1915 and could proceed in

25

forma pauperis. (ECF No. 43.) In coming to that conclusion, the Magistrate Judge reasoned that

26

[i]n his objections, plaintiff alleges that although he had been moved
to a building within the prison where defendant did not work, he
remained in the same prison, and defendant has once again been
assigned to work in the building where plaintiff is housed. ([ECF
No. 42] at 2-3.) He further alleges that because of defendant’s
3

27
28

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

demonstrated disregard for previous instructions to stop harassing
plaintiff, there is a constant risk that defendant will reinitiate his
harassment, leading to sleep deprivation and hospitalization, as it did
in the past. (Id. at 2-3, 5.) Though not clear, it appears that plaintiff
may be alleging that defendant has already resumed his retaliatory
harassment of plaintiff. (Id. at 2.) These facts are sufficient to
demonstrate that plaintiff was subject to an ongoing danger of serious
physical injury at the time he filed the second amended complaint
and therefore falls within the imminent danger exception. Andrews
v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007) (allegations of
an ongoing danger meet the imminent danger requirement); Williams
v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015) (“[I]t is sufficient for
the prisoner to allege that he faces an “ongoing danger,” even if he is
not “directly exposed to the danger at the precise time he filed the
complaint.” (quoting Andrews, 493 F.3d at 1056)).
(ECF No. 43 at 1-2.)
Defendant provides evidence that he has not been reassigned to Building One where
plaintiff is housed, though he has worked overtime shifts in Building One on thirteen separate
occasions since plaintiff was moved there, one of which occurred during the nighttime hours.
(ECF No. 60-1 at 3, ¶¶ 8-9.) The evidence further states that defendant “can retain his current
assignment in Building Two until at least January 2019.” (Id., ¶ 10.) However, even assuming
that defendant has not been reassigned to Building One as plaintiff claimed in his objections, the
Magistrate Judge’s decision to withdraw the February 8, 2018 findings and recommendations and
deny the motion to revoke plaintiff’s in forma pauperis status was not clearly erroneous or
contrary to law and will be affirmed.
The Ninth Circuit has cautioned “that § 1915(g) concerns only a threshold procedural
question—whether the filing fee must be paid upfront or later . . . [and] we should not make an
overly detailed inquiry into whether the allegations qualify for the exception.” Andrews, 493
F.3d at 1055 (citations omitted). Regardless of whether defendant’s assignment to Building One
was temporary or permanent, plaintiff’s objections served to make clear that so long as he was
housed at the same prison where defendant worked, defendant would continue to have access to
him, meaning that at the time the complaint was filed plaintiff was at risk of continued retaliatory
harassment and sleep deprivation. That defendant ultimately only worked thirteen shifts in
Building One after plaintiff’s transfer, and only one of those shifts was overnight, is immaterial.

28
4

1

Defendant provides no evidence that he was incapable of being assigned further overnight shifts

2

in Building One, and while the evidence states that he could maintain his current assignment in

3

Building Two, there is nothing to demonstrate that he was required to maintain that assignment.

4

Though it appears that the risk of serious physical injury did not ultimately materialize into actual

5

injury, that does not mean that the risk did not exist at the time plaintiff filed his complaint,

6

particularly in light of the allegations that defendant regularly disregarded instructions to leave

7

plaintiff alone.

8
9

Accordingly, IT IS HEREBY ORDERED that defendant’s motion for reconsideration
(ECF No. 50) is granted. Upon reconsideration, the Magistrate Judge’s order withdrawing the

10

February 8, 2018 findings and recommendations and denying defendant’s motion to revoke

11

plaintiff’s in forma pauperis status is affirmed.

12
13
14
15

DATED: January 15, 2019
/s/ John A. Mendez____________

_____

UNITED STATES DISTRICT COURT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
5