Morales v. Cruse et al
Filing
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ORDER DENYING PETITIONER'S MOTION TO ALTER OR AMEND JUDGMENT by Judge Phyllis J. Hamilton denying 21 Motion to Alter Judgment (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 9/13/2011)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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JOSE LUIS MORALES,
Plaintiff,
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For the Northern District of California
United States District Court
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No. C 09-3312 PJH (PR)
vs.
ORDER DENYING
PETITIONER’S MOTION TO
ALTER OR AMEND
JUDGMENT
K. CRUSE and CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Defendants.
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This is a civil rights case filed pro se by a state prisoner. The court granted
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defendants’ motion to dismiss the case as moot. Plaintiff has filed a motion to alter or
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amend the judgment.
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A motion for reconsideration under Rule 59(e) "'should not be granted, absent highly
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unusual circumstances, unless the district court is presented with newly discovered
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evidence, committed clear error, or if there is an intervening change in the law."' McDowell
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v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). A district
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court does not commit clear error warranting reconsideration when the question before it is
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a debatable one. Id. at 1256. Motions for reconsideration should not be frequently made
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or freely granted; they are not a substitute for appeal or a means of attacking some
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perceived error of the court. Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d
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1338, 1341 (9th Cir. 1981).
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Plaintiff’s claim was that his constitutional rights were violated by his placement in
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what is called the ““Behavior Management Unit,” or “BMU.” He requested only injunctive
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relief. In the order granting the motion to dismiss, the court granted defendants’ motion to
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take judicial notice of official records showing that plaintiff had been released from the BMU
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program and that the program had been discontinued at Pelican Bay. In granting the
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motion the court said that “the motion is unopposed, and plaintiff concedes in his opposition
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to the motion to dismiss that he has been released and the program discontinued.”
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One ground for the motion to reconsider now before the court is plaintiff’s contention
judicial notice; he believed he “could address it within the opposition to the motion to
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dismiss, which he did.” Contrary to this assertion, the opposition did not contain any
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grounds for not taking judicial notice of the records. Furthermore, as the court’s reference
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in the ruling to plaintiff’s concession in his opposition that he had been released shows, the
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For the Northern District of California
that as a pro se litigant he did not know that he had to separately oppose the motion for
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United States District Court
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court considered the contents of the opposition. This ground for reconsideration is
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meritless.
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Plaintiff also contends that his placement in the BMU program is capable of
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repetition because when the program was in operation, transferees to the prison were
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placed in it for sixty days. See Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509
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(9th Cir. 1994) (exception to the mootness doctrine exists where a claim is "capable of
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repetition yet evading review."). This fact was not raised in opposition to the motion to
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dismiss, and plaintiff has not established that it is new evidence that could not have been
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provided at the time of ruling. Furthermore, the mere fact that new arrivals at Pelican Bay
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were placed in the BMU program does not establish a reasonable expectation that plaintiff,
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who after all is already at Pelican Bay, will be subjected to the same action again. See
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Porter v. Jones, 319 F.3d 483, 489-90 (9th Cir. 2003) (“reasonable expectation” standard).
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The motion to alter or amend the judgment (document 21 on the docket) is DENIED.
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IT IS SO ORDERED.
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Dated: September 13, 2011.
PHYLLIS J. HAMILTON
United States District Judge
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P:\PRO-SE\PJH\CR.09\MORALES3312.recon.wpd
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