Arias v. Davey et al

Filing 11

ORDER DENYING MOTION FOR RECONSIDERATION; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Magistrate Judge Jacqueline Scott Corley on 9/2/2015. (Attachments: # 1 Certificate of Service) (ahm, COURT STAFF) (Filed on 9/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIO MARTINEZ ARIAS,

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Case No. 15-cv-01857-JSC

Plaintiff,
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v.
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D. DAVEY, et al.,

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Defendants.

ORDER DENYING MOTION FOR
RECONSIDERATION; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
Re: Dkt. Nos. 6, 9

United States District Court
Northern District of California

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Plaintiff, a California prisoner proceeding pro se, filed this civil rights complaint under 42

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U.S.C. ' 1983 against his former and current wardens.1 He was granted leave to proceed in forma

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pauperis in a separate order. (Dkt. No. 4.) After reviewing the complaint pursuant to 28 U.S.C. §

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1915A, the Court dismissed it without leave to amend because it did not state a cognizable claim

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for relief. (Dkt. No. 3.) Plaintiff has filed a motion for reconsideration. (Dkt. No. 6.) In addition,

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he filed a notice of appeal, and the United States Court of Appeals has referred the appeal to this

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Court for the limited purpose of determining whether pauper status should continue on appeal or

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whether the appeal is frivolous or taken in bad faith. (Dkt. No. 9.) See 28 U.S.C. § 1915(a)(3).
In the Northern District of California, Local Rule 7-9 allows for the filing of motions for

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reconsideration only with respect to interlocutory orders made in a case prior to the entry of final

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judgment. See Civil L.R. 7-9(a). Therefore, a post-judgment motion for reconsideration is

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construed as a motion to alter or amend judgment under Rule 59(e) or a motion for relief from

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judgment under Rule 60(b) of the Federal Rules of Civil Procedure.
Plaintiff does not specify whether he seeks relief under Rule 59(e) or Rule 60(b). The

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motion is therefore construed as a motion under Rule 59(e) because the denial of a motion under

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Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (Dkt. No. 1 at 5.)

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Rule 59(e) is construed as a denial of relief under Rule 60(b) as well. See McDowell v. Calderon,

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197 F.3d 1253, 1255 n.3 (9th Cir. 1999) (citation omitted) (en banc). A motion to alter or amend

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judgment under Rule 59(e) “‘should not be granted, absent highly unusual circumstances, unless

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the district court is presented with newly discovered evidence, committed clear error, or if there is

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an intervening change in the law.’” Id. at 1255.

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Plaintiff does not indicate the provision of Rule 59(e) under which reconsideration is

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warranted. Plaintiff alleges no newly discovered evidence, no clear error, and no intervening

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change in the law. Rather, plaintiff argues that his rights under the California Code of Regulations

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pertaining to the pursuit of prison administrative appeals are being violated. As explained in the
dismissal order, the violation of state law is not grounds for relief under Section 1983. See West v.

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United States District Court
Northern District of California

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Atkins, 487 U.S. 42, 48 (1988). He states that the violation of his right to pursue administrative

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appeals violates his right to due process, but the Court explained in the dismissal order that there is

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no federal constitutional right to a prison administrative appeal or grievance system. See Ramirez

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v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Plaintiff cites no authority indicating that the above

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conclusions are wrong, let alone clearly erroneous, nor does he show any other grounds for
reconsideration. Plaintiff’s disagreement with the Court’s conclusions in the dismissal order may
be raised in his appeal, but are not grounds for reconsideration. See Twentieth Century - Fox Film
Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (motions for reconsideration are not a
substitute for appeal or a means of attacking some perceived error of the court). Consequently, the
motion for reconsideration (dkt. 6) is DENIED
Pursuant to the referral from the United States Court of Appeals, this Court finds that the
appeal is taken in good faith such that plaintiff’s pauper status may continue on appeal. See 28
U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
Dated: 9/2/15

________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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