Percelle v. Pearson et al

Filing 209

ORDER by Judge Thelton E. Henderson denying 199 Motion for Reconsideration. (tehlc1, COURT STAFF) (Filed on 7/1/2015).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE DALE PERCELLE,
Plaintiff,

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v.
S. PEARSON, et al.,
Defendants.

Case No. 12-cv-05343-TEH
ORDER DENYING PLAINTIFF’S
ADMINISTRATIVE MOTION FOR
LEAVE TO FILE MOTION OVER
POTENTIAL OBJECTION

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This matter is before the Court on Plaintiff’s motion for leave to file a second

United States District Court
Northern District of California

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amended complaint (“SAC”). Mot. at 1 (Docket No. 196). Plaintiff simultaneously filed

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an administrative motion for leave to file the motion over Defendants’ potential objection

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that it constitutes a motion for reconsideration under Civil Local Rule 7-9. Admin. Mot.

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at 1 (Docket No. 199). The reason for the administrative motion is that the Court

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previously dismissed Plaintiff’s due process claim with prejudice. November 19, 2013

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Order at 9 (Docket No. 71). In spite of this prior order, Plaintiff now seeks to amend the

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complaint to include a due process claim. Mot. at 5-7. Plaintiff argues that the

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administrative motion is not actually a motion for leave to file a motion for

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reconsideration, because he seeks a ruling on the sufficiency of the proposed SAC instead

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of a reconsideration of the order dismissing the FAC; nonetheless, he filed the

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administrative motion to preempt that possible ground for opposition. Admin. Mot. at 2.

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Despite Plaintiff’s argument to the contrary, Plaintiff’s motion for leave to amend

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the complaint must be viewed as a motion for reconsideration of the Court’s order granting

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in part Defendants’ motion to dismiss. The Court previously dismissed Plaintiff’s due

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process claim with prejudice, yet Plaintiff now seeks to bring a due process claim. The

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new due process claim is fundamentally similar to the prior claim: both allege that

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Defendants had insufficient evidence with which to validate Plaintiff as a gang member

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and therefore place him in administrative segregation. Compare Proposed SAC ¶¶ 138-

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152 (Docket No. 196-1), with FAC ¶¶ 62-70 (Docket No. 55). The only way for Plaintiff

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to bring such a claim is if the Court reconsiders its order dismissing the claim with

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prejudice.

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A motion for leave to file a motion for reconsideration of an interlocutory order

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may be granted if the moving party shows “[t]hat at the time of the motion for leave, a

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material difference in fact or law exists from that which was presented to the Court before

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entry of the interlocutory order for which reconsideration is sought.” Civil L.R. 7-9(b)(1).

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“The party also must show that in the exercise of reasonable diligence the party applying

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for reconsideration did not know such fact or law at the time of the interlocutory order.”

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United States District Court
Northern District of California

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Id.
Here, Plaintiff argues that a material difference in fact exists from that which was

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presented to the Court in 2013, because Plaintiff has conducted additional discovery since

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that time. Admin. Mot. at 2. Specifically, Plaintiff notes that he obtained redacted

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portions of a confidential informant’s debriefing memorandum in April of 2014; that he

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received a composition book including the names of known gang members (in addition to

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“hundreds” of other people) as well as the library copy of the book “Blood in My Eye” in

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October of 2014; and that he obtained the Defendants’ emails regarding their failure to

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produce certain information to him in January of 2015. Id.

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The first three of these, at least, do not constitute new material facts, even though

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Plaintiff did not previously have them in his possession. In fact, each of these three pieces

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of information were considered by the Court as potential bases for validation when it

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dismissed Plaintiff’s due process claim with prejudice. November 19, 2013 Order at 7-8.

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At that time, the Court noted that there must only be “some evidence from which the

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administrative board’s conclusion could have followed.” Id. at 7 (citing Toussaint v.

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McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986)). The mere fact that Plaintiff now has

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access to these documents does not constitute a material difference in fact that would call

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into question whether “some evidence” supported the administrative board’s decision.

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Moreover, Plaintiff has not shown that he exercised reasonable diligence that would

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justify his failure to know any of these allegedly new and material facts at the time of the

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Court’s November 19, 2013 order. In fact, this requirement for reconsideration is not

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discussed in the administrative motion whatsoever. See Admin. Mot. at 1-3. In his motion

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for leave to file a SAC, Plaintiff states that he initially propounded discovery requests in

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May 3, 2013, but that Defendants responded with objections. Mot. at 3. Plaintiff does not

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discuss the extent to which Defendants’ objections were or were not justified, or explain

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what steps he took in response to the objections before the Court’s November 19, 2013

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order. See id. He does state that “Defendants produced documents in bits and pieces” in
response to several motions to compel, but all of those motions were filed after the Court’s

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United States District Court
Northern District of California

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November 19, 2013 order. Id. In short, Plaintiff has not shown that he exercised due

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diligence before the Court’s prior order such that he is now entitled to reconsideration.

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Plaintiff has not demonstrated sufficient grounds for the Court to reconsider its

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order dismissing his due process claim with prejudice. Plaintiff’s administrative motion

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for leave to file a motion for leave to file a SAC is therefore DENIED. Plaintiff’s

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proposed SAC shall not include a due process claim. Further briefing and argument

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regarding Plaintiff’s motion for leave to file a SAC shall only discuss Plaintiff’s proposed

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second and third causes of action.

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IT IS SO ORDERED.

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Dated: 07/01/15

_____________________________________
THELTON E. HENDERSON
United States District Judge

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