Marroquin v. Gready et al

Filing 42

ORDER by Judge ARMSTRONG denying 41 Motion to Vacate (lrc, COURT STAFF) (Filed on 2/25/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 ARMANDO ANTONIO MARROQUIN,

Plaintiff,

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Case No: C 09-3841 SBA (pr)
ORDER DENYING MOTION TO
VACATE JUDGMENT

vs.
Docket 41

9 OFFICER T. GRADY, et al.,
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Defendants.

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Plaintiff previously brought the instant pro se action against various correctional

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officers and the Warden at Salinas Valley State Prison for deliberate indifference to safety

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and deliberate indifference to serious medical needs, pursuant to 42 U.S.C. § 1983. On

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September 28, 2012, the Court granted Defendants’ motion for summary judgment as to

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Plaintiff’s federal claims and declined to assert supplemental jurisdiction over his state law

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causes of action. Dkt. 39.

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On October 25, 2012, Plaintiff filed a Motion to Vacate Judgment Civil Action

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under Federal Rule of Civil Procedure 59(e). Dkt. 41. The amendment or alteration of a

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judgment is permissible under Rule 59(e) if: (1) the district court is presented with newly-

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discovered evidence; (2) the district court committed clear error or made an initial decision

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that was manifestly unjust; or (3) there is an intervening change in controlling law.

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Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). Reconsideration is an

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“extraordinary remedy, to be used sparingly in the interests of finality and conservation of

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judicial resources.” Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A

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district court has “considerable discretion” in considering a Rule 59(e) motion. Turner v.

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Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).

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Plaintiff asserts that he has “newly discovered” evidence—i.e., two witnesses who

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allegedly will testify that he was in need of medical care and suffered pain. Mot. at 2. He

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further requests that the Court appoint an attorney to interview these witnesses. However,

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Plaintiff fails to articulate the specific testimony his proposed witnesses would offer or

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make any showing that they, in fact, are competent to provide information germane to any

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material issue of fact. Moreover, Plaintiff fails to make any showing why he could not

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have uncovered the identity of these witnesses earlier, particularly given that the underlying

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incident occurred in 2008. See Kona Enters., 229 F.3d at 890 (noting that a motion for

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reconsideration “may not be used to raise arguments or present evidence for the first time

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when they could reasonably have been raised earlier in the litigation.”).
Plaintiff also contends that the Court’s ruling was in error on the grounds that the

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Court improperly credited the declarations submitted by Defendants, since “prison staff can

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say anything they want in their declarations and reports.” Mot. at 2. However, in ruling on

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Defendants’ summary judgment motion, the Court only considered admissible evidence.

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See 9/28/12 Order at 10-11. In addition, Plaintiff has waived any objections to such

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evidence. Plaintiff’s ancillary contention that the Court did not consider the evidence he

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submitted with his opposition is belied by the Court’s Order, which clearly addresses his

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contentions. Accordingly,

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IT IS HEREBY ORDERED THAT:

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Plaintiff’s motion to vacate judgment is DENIED.

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2.

For the reasons stated above and the Court’s summary judgment order, the

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Court certifies that any appeal from the Court’s summary judgment decision would not be

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in good faith within the meaning of 28 U.S.C. § 1915(a)(3).

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3.

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IT IS SO ORDERED.

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This Order terminates Docket 41.

Dated: February 22, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ARMANDO A. MARROQUIN et al,
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Plaintiff,

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v.
MIKE EVANS et al,
Defendant.
/

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Case Number: CV09-03841 SBA

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CERTIFICATE OF SERVICE
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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 February 25, 2013, 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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Armundo A. Marroquin T-86698
L.P.C.C. N.A. 227
5501 N. L Palma Rd.
Eloy, AZ 85131

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Dated: February 25, 2013
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Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk
G:\PRO-SE\SBA\CR.09\Marroquin3841.DenyMotVacate.docx

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