Morales v. Cruse et al

Filing 22

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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