(PC) Rivera v. Diaz et al

Filing 12

ORDER signed by Magistrate Judge Jeremy D. Peterson on 2/18/2021 DENYING plaintiff's 10 motion for reconsideration. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL RIVERA,

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Plaintiff,

Case No. 2:20-cv-02235-TLN-JDP (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.
ECF No. 10
RALPH DIAZ, et al.,
Defendants.

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On January 15, 2021, I screened plaintiff’s complaint and notified plaintiff that the

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complaint did not state a viable claim. ECF No. 7. I granted plaintiff leave to file an amended

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complaint. Id. Rather than filing an amended complaint, plaintiff has filed a motion for

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reconsideration objecting to the January 15 screening order. ECF No. 10. Plaintiff’s motion fails

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to show that reconsideration is appropriate and will therefore be denied.

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Generally, a court will reconsider a prior order when it “(1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law.” School Dist. No. 1J v. AC and S, Inc., 5 F.3d

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1255, 1263 (9th Cir. 1993). Under the court’s local rules, a motion for reconsideration must

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specify “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion,” and “why

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the facts or circumstances were not shown at the time of the prior motion.” E.D. Cal. L.R.
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230(j)(3)-(4).
The January 15 screening order explained that plaintiff’s claim challenging the rejection

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of his group grievance failed because he does not have a constitutional entitlement to a particular

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grievance procedure. ECF No. 7 at 3. It also notified plaintiff that the complaint’s First

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Amendment retaliation claim was deficient because it was supported only by vague and

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conclusory allegations that failed to: (1) specify what role each defendant played in restricting

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plaintiff’s ability to file a group administrative appeal and (2) demonstrate that plaintiff’s

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protected activity was the motivating factor behind defendants’ conduct. ECF No. 7 at 3; see

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Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009).

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In his motion for reconsideration, plaintiff first complains that the screening order failed

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to account for case authority that establishes a right to file a grievance. ECF No. 10 at 3. Plaintiff

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is correct that he has a First Amendment right to file grievances. See Watison v. Carter, 668 F.3d

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1108, 1114 (9th Cir. 2012). But that right does not bestow an entitlement to a specific grievance

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procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Plaintiff’s complaint only

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alleged that he was precluded from filing a group administrative appeal—not that he was

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prohibited from filing a grievance in accordance with his institution’s established procedures.

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Plaintiff also challenges the screening order’s finding that the complaint failed to state a

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First Amendment retaliation claim. He specifically notes that the complaint alleged that

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defendants “conspired to and did enact emergency regulations to ban group appeals statewide in

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retaliation.” ECF No. 7 at 6. The cited statement is precisely the type of conclusory and

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unadorned allegation that is proscribed by controlling Supreme Court authority. See Ashcroft v.

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Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v Twombly, 550 U.S. 554, 555-57 (2007).

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Plaintiff has failed to demonstrate that the January 15, 2021 screening order contained any

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error warranting reconsideration. Accordingly, it is hereby ORDERED that plaintiff’s motion for

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reconsideration, ECF No. 10, is denied.

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IT IS SO ORDERED.

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Dated:
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February 18, 2021
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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