Ortiz v. County of Sonoma et al

Filing 65

ORDER DENYING OBJECTION TO ORDER GRANTING DEFENDANTS' MOTION TO DISMISS IN PART. Signed by Magistrate Judge Jacqueline Scott Corley on 10/21/2014. (ahm, COURT STAFF) (Filed on 10/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID ORTIZ,

Case No. 14-cv-00322-JSC

Plaintiff,
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v.
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STEVE FREITAS, et al.,
Defendants.

ORDER DENYING OBJECTION TO
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS IN PART
Re: Dkt. No. 57

United States District Court
Northern District of California

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Plaintiff David Ortiz makes excessive force, denial of medical treatment, and other claims

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pursuant to 42 U.S.C. section 1983 arising from his detention at the Sonoma County Jail facility.

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On September 2, 2014, the Court granted in part and denied in part Defendants’ Motion to

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Dismiss the Second Amended Complaint. On September 22, 2014, Plaintiff filed the now pending

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“Objection to Order to Dismiss 1983 Cause of Action by Magistrate Judge (F.R.C.P. 59(b)(2))”

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(Dkt. No. 57.) For the reasons set forth below, Plaintiff’s motion is DENIED.

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As an initial matter, Plaintiff cites “F.R.C.P. 59(b)(2)” as the procedural vehicle for his

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motion, but there is no such rule. Federal Rule of Civil Procedure 59 applies to motions for new

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trial and subsection (b) covers the time to file a motion for new trial. To the extent that Plaintiff’s

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motion is intended as a motion for reconsideration pursuant to Civil Rule 7-9, the motion is

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procedurally and substantively defective.

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First, “[n]o party may notice a motion for reconsideration without first obtaining leave of

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Court to file the motion.” Civ. L.R. 7-9(a). Plaintiff did not seek leave prior to filing a motion

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for reconsideration of the Court’s September 2, 2014 Order.

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Second, a motion for reconsideration may be made on one of three grounds: (1) a material

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difference in fact or law exists from that which was presented to the Court, which, in the exercise

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of reasonable diligence, the party applying for reconsideration did not know at the time of the

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order; (2) the emergence of new material facts or a change of law; or (3) a manifest failure by the

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Court to consider material facts or dispositive legal arguments presented before entry of judgment.

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Civ. L.R. 7–9(b)(1)–(3). Plaintiff contends that the Court erred in dismissing the Fourth Cause of

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Action (Denial of Medical Treatment for Vertigo) and the Fifth Cause of Action (Denial of

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Medical Treatment); however, Plaintiff’s motion does not satisfy any of the three grounds for a

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motion for reconsideration, and instead, reargues the merits of his claims. Rule 7-9(c) expressly

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prohibits “reargu[ing] any written or oral argument previously asserted to the Court.” For this

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reason, alone, the motion must be denied.

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Third, the motion fails on its merits. The Court previously dismissed the Fourth and Fifth

United States District Court
Northern District of California

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Causes of Action with leave to amend for failure to state a claim. (Dkt. Nos. 26 & 42.) In

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particular, the Fourth and Fifth Causes of Action were pled against Sonoma County, that is, both

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were pled as Monell claims. As explained in the September Order dismissing these claims for the

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third time, Plaintiff had still failed to identify a policy, practice, or custom which led to the denial

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of treatment under either cause of action; nor had he specified who denied him treatment and that

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the individual(s) who did so had final policy-making authority. (Dkt. No. 55.) Plaintiff’s motion

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for reconsideration does not even address these deficiencies. For this reason, too, the motion is

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DENIED.

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This Order disposes of Docket No. 57.

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IT IS SO ORDERED.

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Dated: October 21, 2014
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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