Whitaker v. Saleem et al

Filing 21

ORDER DENYING MOTION re 14 Notice (Other) filed by Whitaker. Signed by Judge Phyllis J. Hamilton on 5/29/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 5/29/2013)

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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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WHITAKER,
Plaintiff,

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No. C 13-0113 PJH (PR)

vs.

ORDER DENYING MOTION

DR. M. SALEEM, et. al.,
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For the Northern District of California

United States District Court

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Defendants.
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This civil rights case filed pro se by a state prisoner was dismissed and closed on

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March 18, 2013. After plaintiff filed an appeal, the Ninth Circuit referred the case back to

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this court on May 17, 2013, for the limited purpose of determining whether plaintiff’s in

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forma pauperis status should continue or whether the appeal is frivolous or taken in bad

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faith. This court then revoked plaintiff’s in forma pauperis status. Docket No. 19.

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The Ninth Circuit has now held their proceedings in abeyance pending another ruling

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from this court. See Whitaker v. M. Saleem, No. 13-15983. Prior to filing his appeal,

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plaintiff filed a “Notice to Judge” on April 1, 2013. Docket No. 14. If plaintiff’s filing is

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construed as a timely filed motion listed in Federal Rule of Appellate Procedure 4(a)(4),

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then plaintiff’s notice of appeal is ineffective until the “Notice to Judge” is addressed.

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In the April 1, 2013, “Notice to Judge”, plaintiff merely repeats the allegations of the

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original and amended complaints, but the court will construe this as a motion to alter or

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amend the judgment pursuant to Fed. R. Civ. P. 59(e).

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A motion to alter or amend judgment under Rule 59 must be made no later than

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twenty-eight days after entry of judgment. See Fed. R. Civ. P. 59(e) (effective Dec. 1,

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2009). A motion for reconsideration under Rule 59(e) "'should not be granted, absent

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highly 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).

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Evidence is not newly discovered for purposes of a Rule 59(e) motion if it was

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available prior to the district court's ruling. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th

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Cir. 2011) (affirming district court's denial of habeas petitioner's motion for reconsideration

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where petitioner's evidence of exhaustion was not "newly discovered" because petitioner

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was aware of such evidence almost one year prior to the district court's denial of the

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petition).
A district court does not commit clear error warranting reconsideration when the

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For the Northern District of California

United States District Court

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question before it is a debatable one. See McDowell, 197 F.3d at 1256 (district court did

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not abuse its discretion in denying reconsideration where question whether it could enter

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protective order in habeas action limiting Attorney General's use of documents from trial

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counsel's file was debatable).

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Courts construing Rule 59(e), have noted that a motion to reconsider is not a vehicle

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permitting the unsuccessful party to "rehash" arguments previously presented, or to present

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"contentions which might have been raised prior to the challenged judgment." Costello v.

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United States, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991). These holdings "reflect[] district

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courts' concerns for preserving dwindling resources and promoting judicial efficiency." Id.

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In his original and amended complaint, plaintiff stated a defendant denied him food,

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though plaintiff repeatedly failed to describe if this was one meal or a recurring problem.

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Plaintiff also stated that his classification status was changed and as a result he was

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denied yard and canteen privileges. However, a prisoner does not have a constitutional

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right to a particular classification status. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th

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Cir.1987) (quoting Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976).

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Plaintiff also alleged that defendant Dr. Saleem gave false testimony in a Keyhea1

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hearing, by falsely stating that plaintiff had threatened staff. As a result, plaintiff was

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involuntarily administered psychotropic medication. Plaintiff included a transcript of the

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Keyhea hearing (Docket No. 6), where he was represented by counsel, testified on his own

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behalf but the administrative law judge ultimately found based on the totality of the

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evidence that plaintiff was a danger to others and needed to be medicated. To the extent

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plaintiff asserted a due process violation, he failed to state such a violation. “[T]he Due

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Process clause permits the State to treat a prison inmate who has a serious mental illness,

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with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and
the treatment is in the inmate's medical interest” as long as the decision to medicate

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For the Northern District of California

United States District Court

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against his will is neither arbitrary, nor erroneous, and comports with procedural due

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process. Washington v. Harper, 494 U.S. 210, 227-29 (1990). Simply stating that a

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witness lied, failed to demonstrate a violation of due process as plaintiff was provided all

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the procedural protections and had failed to show an erroneous or arbitrary decision.

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As plaintiff repeats the same allegations from his prior pleadings, this is insufficient

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to warrant relief as he has failed to demonstrate clear error.2 Therefore, the “Notice to

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Judge” (Docket No. 14) construed as a motion to alter or amend the judgment is DENIED.

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IT IS SO ORDERED.
Dated: May 29, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\CR.13\Whitaker0113.ord.wpd

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In Keyhea v. Rushen, 178 Cal.App.3d 526 (1986), the state appellate court “upheld
a consent decree affirming the right of state prisoners to refuse antipsychotic medications
except under certain limited circumstances.” In re Qawi, 32 Cal.4th 1, 21 (2004). Under
California law, the Keyhea procedures govern the involuntary administration of antipsychotic
medications.

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Plaintiff is also concerned that the court did not review his amended complaint as
perhaps guards did not mail it. The amended complaint was received by the court and
ultimately, reviewed and dismissed. Docket Nos. 11, 12.
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