Atterbury v. Varney et al

Filing 42

ORDER DENYING MOTION TO ALTER OR AMEND 41 (Illston, Susan) (Filed on 9/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DANNY F. ATTERBURY,

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United States District Court
For the Northern District of California

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No. CV 11-4932 SI

Plaintiff,

ORDER DENYING MOTION TO ALTER
OR AMEND

v.
MARISSA SANCHEZ, THERESE
VARNEY, LORI BARLO,
MARY MURTAGH, and DOE (HACN)
SUPERVISOR,
Defendants.

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Pro se plaintiff Danny Atterbury brought this action alleging discrimination and retaliation
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related to low-income housing managed by defendants. On August 22, 2012, the Court granted
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defendant’s motion to dismiss without leave to amend and entered judgment against plaintiff. The Court
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dismissed plaintiff’s federal discrimination and retaliation claims because plaintiff alleged that the
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discrimination and retaliation occurred because of his complaints about unsanitary conditions, not
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because of any handicap or disability. Dkts. 39 at 6-7, 40. The Court dismissed plaintiff’s First
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Amendment retaliation claim because plaintiff failed to adequately allege that defendant landlords were
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acting under color of state law in making housing decisions. Id. at 8. Lacking any remaining federal
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claims, the Court held that there was no basis for federal question jurisdiction and noted that any state
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law claims should be brought in state court. Id. at 9. Plaintiff now seeks to alter or amend the judgment
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pursuant to Fed. R. Civ. P. 59(e).
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District courts have the power to “alter or amend” a judgment by motion under Rule 59(e).
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While Rule 59(e) does not set forth any specific grounds for relief, the Ninth Circuit has made clear that
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altering or amending a judgment is appropriate where (1) there is newly discovered evidence (SEC v.

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Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010)); (2) the district court committed

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clear error or its initial decision was manifestly unjust (Turner v. Burlington Northern Santa Fe R.R.

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Co., 338 F.3d 1058, 1063 (9th Cir. 2003)), or there is an intervening change in the controlling law

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(Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011)). See also, Zimmerman v. City of

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Oakland, 255 F.3d 734, 740 (9th Cir. 2001).
Plaintiff’s instant motion generally challenges the Court’s finding that defendant landlords did

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not act under color of state law, asserting variously that defendants “are entwined with the State”

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because the federal government has delegated “management and control of the section 8 programs” to

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United States District Court
For the Northern District of California

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defendants, and attaching various correspondence from city officials and defendant landlords regarding

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the availability of Section 8 housing. Dkt. 41 at 5-7, 11-14. However, plaintiff has failed to present any

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newly discovered evidence or evidence showing clear error or that this Court’s ruling was manifestly

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unjust. Instead, the instant motion is a rehashing of earlier arguments. See Dkt. 27 at 11-16. The Court

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has already rejected plaintiff’s claims that defendant’s receipt of federal funds for Section 8 housing

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qualifies defendants as state actors, Dkt. 39 at 8, and plaintiff fails to cite, nor is this Court aware of any

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intervening change in the relevant controlling law to justify revisiting that holding. Accordingly,

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plaintiff’s motion is DENIED.

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IT IS SO ORDERED.

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Dated: September 12, 2012
SUSAN ILLSTON
United States District Judge

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