Martin v. Hedgpeth et al

Filing 151

SEE DOCKET NO. 152 CORRECTED ORDER by Judge Charles R. Breyer denying 137 Motion for Reconsideration ; finding as moot 148 Motion for Extension of Time to File (Attachments: # 1 Certificate/Proof of Service) (beS, COURT STAFF) (Filed on 12/23/2015)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 GEORGE MARTIN, H-90626, Plaintiff(s), 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. A. HEDGPETH, Warden, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) No. C 12-3193 CRB (PR) ORDER DENYING SECOND MOTION FOR RECONSIDERATION (Dkt. #137 & 148) On May 14, 2015, the court granted summary judgment in favor of defendants on plaintiff’s three remaining Eighth Amendment medical claims – denial of adequate hypertension medicine, denial of morning pain medication on December 29, 2011 and denial of effective eye wear – and judgment was entered. After reviewing the papers and evidence submitted by plaintiff and defendants, the court found that no reasonable jury could find that defendants were deliberately indifferent to plaintiff’s serious medical needs and that defendants were entitled to qualified immunity because a reasonable doctor could have believed that his conduct was lawful under the circumstances. On June 5, 2015, plaintiff filed a motion for reconsideration of the court’s May 14, 2015 order. The court directed defendants to respond and, after reviewing the parties’ submissions, denied 1 the motion on June 24, 2015. The court specifically noted that 2 motions for reconsideration are not a substitute for appeal or a 3 means of attacking some perceived error of the court. See June 4 24, 2015 Order at 1 (citing Twentieth Century - Foc Film Corp. v. 5 Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981)). 6 On August 24, 2015, plaintiff filed a motion for an 7 extension of time to file a notice of appeal, claiming that he had 8 not received a copy of the court’s June 24, 2015 order denying his 9 motion for reconsideration until August 4, 2015. On September 10 2, 2015, the court granted plaintiff’s motion and advised him that 11 he could “file a notice of appeal within fourteen (14) days of the 12 date of this order. See Fed. R. App. P. 4(a)(5).” 13 On October 2, 2015, plaintiff instead filed a second motion 14 for reconsideration of the court’s May 14, 2015 order granting 15 defendants’ motion for summary judgment claiming “newly 16 discovered evidence.” The court directed defendants to respond 17 by no later than October 16, 2015, which they did. But plaintiff 18 replied that he could not read defendants’ response due to his 19 visual impairment and asked that the response be sent to him in a 20 larger type size. On November 4, 2015, the court ordered 21 defendants to serve plaintiff with a new copy of their response 22 using Times New Roman type size 16, as the court is using in this 23 order, within seven days. Defendants complied and, after some 24 not unexpected delay from plaintiff, plaintiff filed several related 25 and unrelated pleadings to his second motion for reconsideration. 26 Plaintiff’s second motion for reconsideration (dkt. # 137) of 27 28 2 1 the court’s May 14, 2015 order granting defendants’ motion for 2 summary judgment is DENIED. Federal Rule of Civil Procedure 3 60(b) provides for reconsideration where one or more of the 4 following is shown: (1) mistake, inadvertence, surprise or 5 excusable neglect; (2) newly discovered evidence which by due 6 diligence could not have been discovered before the court’s 7 decision; (3) fraud by the adverse party; (4) voiding of the 8 judgment; (5) satisfaction of the judgment; (6) any other reason 9 justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS 10 Inc., 5 F.3d 1255, 1263 (9th Cir.1993). But plaintiff does not 11 show why the proffered new evidence could not have been 12 discovered and presented before the court’s May 14, 2015 13 decision or, if it somehow could be considered by the court, why 14 it would compel a different result. See Carroll v. Nakatani, 342 15 F.3d 934, 945 (9th Cir. 2003) (reconsideration is not a vehicle for 16 rehash arguments previously presented or to raise arguments or 17 present evidence that could have been raised earlier). There 18 simply is no showing that the evidence plaintiff has set forth at 19 this late hour may be considered by the court and would preclude 20 defendants of summary judgment and qualified immunity. 21 The clerk is instructed to terminate all pending motions as 22 moot (see dkt. #148) and close the file. No further motions for 23 reconsideration will be entertained in this matter. 24 SO ORDERED. 25 DATED: Dec. 22, 2015 CHARLES R. BREYER United States District Judge 26 27 28 3 1 G:\PRO-SE\CRB\CR.12\Martin, G.12-3193.deny_2d_recon.wpd 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 28 4

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