Jones v. Evans et al

Filing 106

ORDER by Judge Claudia Wilken DENYING 101 , 102 MOTION FOR RECONSIDERATION. (ndr, COURT STAFF) (Filed on 10/17/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MALIK JONES,

No. C 07-04277 CW (PR)

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ORDER DENYING MOTION FOR
RECONSIDERATION

Plaintiff,
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v.

(Docket nos. 101, 102)

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M. EVANS, et al.,
Defendants.
_______________________/

United States District Court
For the Northern District of California

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Plaintiff Malik Jones, a state prisoner currently incarcerated
at High Desert State Prison (HDSP), filed this pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 alleging the violation of
his constitutional rights while incarcerated at Salinas Valley
State Prison (SVSP).

The Court found cognizable Plaintiff's Eighth

Amendment claims for excessive force and deliberate indifference to
his safety against Defendant SVSP Correctional Officer Bailey.
On March 31, 2011, the Court granted Bailey's motion to
dismiss the complaint for failure to exhaust administrative
remedies as required under 42 U.S.C. § 1997e(a).

Judgment was

entered in favor of Bailey that same date.
Now pending before the Court is Plaintiff's motion for
"Reconsideration of Judgment," which the Court construes as a
motion for reconsideration under Federal Rule of Civil Procedure
60(b).

Plaintiff also has appealed the Court's Order and Judgment

to the Ninth Circuit Court of Appeals, which, in an Order filed
October 11, 2011, notified this Court that it is holding the appeal
"in abeyance pending the district court's resolution of the April

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20, 2011 pending motion for reconsideration."

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1.)

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(Docket no. 105 at

Where the district court's ruling has resulted in a final
judgment or order, a motion for reconsideration may be based on

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Rule 60(b) of the Federal Rules of Civil Procedure.

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Ironworks & Erectors v. N. Am. Constr. Corp., 248 F.3d 892, 898-99

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(9th Cir. 2001).

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or more of the following is shown: (1) mistake, inadvertence,

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surprise or excusable neglect; (2) newly discovered evidence which

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United States District Court
For the Northern District of California

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by due diligence could not have been discovered before the court's

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decision; (3) fraud by the adverse party; (4) the judgment is void;

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(5) the judgment has been satisfied; (6) any other reason

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justifying relief.

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ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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See Am.

Rule 60(b) provides for reconsideration where one

Fed. R. Civ. P. 60(b); School Dist. 1J v.

Motions for reconsideration should not be frequently made or

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freely granted; they are not a substitute for appeal or a means of

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attacking some perceived error of the court.

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Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir.

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1981).

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an intervening change of controlling law, the availability of new

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evidence, or the need to correct a clear error or prevent manifest

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injustice.'"

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F.2d 364, 369 n.5 (9th Cir. 1989) (quoting United States v. Desert

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Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)).

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See Twentieth

"'[T]he major grounds that justify reconsideration involve

Pyramid Lake Paiute Tribe of Indians v. Hodel, 882

In the present motion, Plaintiff argues reconsideration should

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be granted and the judgment of dismissal vacated because the Court

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wrongly interpreted the evidence presented by the parties in

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support of and in opposition to the motion to dismiss.
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In particular, Plaintiff maintains the Court wrongly decided
the motion because the evidence shows that SVSP prison officials

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deliberately prevented him from exhausting administrative remedies

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by (1) stealing the first level response to his appeal,

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(2) modifying the "received" date on his appeal, (3) screening out

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the appeal as untimely filed, and (4) waiting more than one month

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to return to Plaintiff the appeal and screening form.

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Plaintiff maintains that the Court wrongly determined that he did

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not attempt to challenge the accuracy of the screening decision

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United States District Court
For the Northern District of California

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because the evidence shows that, after his rejected appeal was

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returned to him, he submitted another appeal claiming that the

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denial of the first appeal as untimely was due to bias.

Also,

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Plaintiff's arguments concerning the deliberate actions of

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SVSP prison officials to prevent him from exhausting administrative

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remedies were raised in Plaintiff's opposition to the motion to

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dismiss and discussed by the Court in the Order granting that

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motion.

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has presented no evidence or legal argument that warrants

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reconsideration.

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wrongly determined that he did not attempt to challenge the appeal

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decision is without merit.

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had not followed the explicit instructions provided on the screening

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form for challenging the screening decision.

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Court found as follows:

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Although Plaintiff disagrees with the Court's ruling, he

Further, Plaintiff's contention that the Court

Rather, the Court found that Plaintiff

Specifically, the

As Appeals Coordinator Medina explained, inmate
appeals that are "screened out" are returned to the
inmate with instructions on how to correct the
deficiency. (Medina Decl. ¶ 13.) The screening form
attached to log no. SVSP C-06-02436 and returned to
Plaintiff indicated, "If you allege the above reason is
inaccurate, then attach an explanation on a separate
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United States District Court
For the Northern District of California

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piece of paper, or use the back of this screen-out."
(Medina Decl., Ex. I.) "Please return this form to the
Appeals Coordinator with the necessary information
attached." (Id.)
Plaintiff does not allege, nor does the record
indicate, that he returned the form to the Appeals
Coordinator with an explanation alleging the screeningout decision for untimeliness was inaccurate. Neither
does Plaintiff allege that he did not have "the
opportunity to file within the prescribed time
constraints." [Citation omitted.] To the contrary,
Plaintiff claims that once he learned Defendant Bailey
passed around a falsified 128G chrono to other prisoners,
he "confronted" Defendant Bailey himself. (Am. Compl. at
4.)
Docket no. 98 at 11:26-12:15.
Plaintiff did not argue in his opposition, nor does he here,
that he followed the procedures on the screening form.
Accordingly, for the reasons discussed above, Plaintiff's
motion for reconsideration is DENIED.
With the denial of the motion for reconsideration the notice
of appeal becomes effective.

See Fed. R. App. P. 4(B)(i).

Rule 24(a)(3) of the Federal Rules of Appellate Procedure

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provides that a party granted leave to proceed in forma pauperis

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(IFP) in district court, as Plaintiff was here, may continue in

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that status on appeal unless the district court certifies that the

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appeal is not taken in good faith, which in this context means that

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it is frivolous.

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(1958).

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may continue his IFP status on appeal.

See Ellis v. United States, 356 U.S. 674, 674-75

The appeal is taken in good faith; therefore, Plaintiff

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Pursuant to the Ninth Circuit's October 11, 2011 Order,

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Plaintiff "shall file an amended notice of appeal" within thirty

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(30) days of the date of this Order.

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(Docket no. 105 at 1.)

The Clerk of the Court shall notify Plaintiff and the Ninth

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Circuit of this Order.

See Fed. R. App. P. 24(a)(4).

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This Order terminates Docket nos. 101 and 102.

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IT IS SO ORDERED.

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Dated:

10/17/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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MALIK JONES,
Case Number: CV07-04277 CW

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Plaintiff,
CERTIFICATE OF SERVICE
v.
MIKE EVANS, WARDEN et al,
Defendant.

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United States District Court
For the Northern District of California

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 17, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Malik Jones K-09065
FC-O-3-116
P.O. Box 1050
Soledad, CA 93960

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Dated: October 17, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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