Vargasarellano v. Hessling et al

Filing 17

ORDER by Judge Yvonne Gonzalez Rogers denying 16 Plaintiff's Motion for Reconsideration. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/17/2017)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

IVAN VARGASARELLANO,

Case No. 16-cv-00919-YGR (PR)

Plaintiff,
5

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

v.
6
7

RENEE M. HESSLING, et al.,
Defendants.

8
Before the Court is Plaintiff’s Motion for Reconsideration. Dkt. 16. Specifically, Plaintiff

9

moves for reconsideration of the Court’s Order dismissing his action on May 20, 2016,

11
United States District Court
Northern District of California

10

presumably pursuant to either Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure. Having

12

read and considered the papers filed in connection with this matter and being fully informed, the

13

Court hereby DENIES the motion for the reasons set forth below.

14
15

I.

BACKGROUND
Plaintiff, a state prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983. He

16

alleged that Defendant Renee M. Hessling, Esq., the attorney who represented him in his criminal

17

proceedings in 2014, did not provide him with effective assistance of counsel. He sought

18

injunctive relief as well as monetary and punitive damages.

19

Pursuant to 28 U.S.C. § 1915A(a), the Court screened Plaintiff’s complaint and dismissed

20

it without prejudice and without leave to amend. The Court found that Plaintiff’s allegations did

21

not state a claim upon which relief may be granted because “he cannot pursue any claim for

22

damages or injunctive relief under 42 U.S.C. § 1983 that, if successful, necessarily would call into

23

question the validity of his conviction or confinement.” Dkt. 14 at 2. The Court further added as

24

follows:

25
26
27
28

. . . Heck v. Humphrey, 512 U.S. 477 (1994), holds that in order to
state a claim for relief for an allegedly unconstitutional conviction or
term of imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
plaintiff asserting a violation of section 1983 must prove that the
conviction or sentence has been reversed or declared invalid. Id. at
486-87. If success in the section 1983 lawsuit would necessarily

demonstrate the invalidity of the confinement or its duration, the
section 1983 lawsuit is barred, irrespective of whether the plaintiff
seeks monetary damages or equitable relief. Wilkinson v. Dotson,
544 U.S. 74, 81 (2005).

1
2

Here, Plaintiff’s complaint seeks injunctive relief and
damages from the attorney who allegedly failed to provide him with
adequate representation in his criminal proceedings. Such claims, if
successful, necessarily would call into question the validity of
Plaintiff’s conviction. Accordingly, the complaint is DISMISSED
without leave to amend. See Heck, 512 U.S. at 487.

3
4
5
6
Id.
7
8
9
10

United States District Court
Northern District of California

11

Plaintiff has now filed a motion seeking reconsideration of the Court’s Order of Dismissal.
Dkt. 16. In particular, Plaintiff claims that his “assertion that his constitutional rights were
violated were not considered, but disregarded . . . .” Id. at 2. He requests that the Court reconsider
its prior Order of Dismissal so that this “instant action may proceed” or to “allow Plaintiff to
amend this [complaint] to meet the standards.” Id. at 3.

12
13

II.

DISCUSSION
Where, as here, the Court’s ruling has resulted in a final judgment or order, a motion for

14
reconsideration may be based either on Rule 59(e) or Rule 60(b) of the Federal Rules of Civil
15

Procedure. As of 2009, the Federal Appellate Rule 4’s deadline to file a motion for

16
reconsideration under either Rule 59(e) or Rule 60(b) is twenty-eight days. See Classic Concepts,
17

Inc. v. Linen Source, Inc., 716 F.3d 1282, 1285 (9th Cir. 2013). Plaintiff’s present motion was

18
filed within the twenty-eight day period, and it is therefore timely under both rules.
19

A motion for reconsideration under Rule 59(e) “‘should not be granted, absent highly

20
unusual circumstances, unless the district court is presented with newly discovered evidence,
21
committed clear error, or if there is an intervening change in the law.’” McDowell v. Calderon,
22
197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). A district court does not commit
23
clear error warranting reconsideration when the question before it is a debatable one. See id. at
24
1256 (district court did not abuse its discretion in denying reconsideration where question whether
25
it could enter protective order in habeas action limiting Attorney General’s use of documents from
26
trial counsel’s file was debatable). Meanwhile, under Federal Rule of Civil Procedure 60(b), a
27
party may seek relief from a judgment and to re-open his case in limited circumstances. The Rule
28
2

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12

provides:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). The decision of whether or not to grant relief under Rule 60(b) is matter of

13
the district court’s discretion. See Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996,
14
1001 (9th Cir. 2007).
15
16
17

Rule 60(b)(6) allows courts the discretion “to vacate judgments whenever such action is
appropriate to accomplish justice.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009)
(citation omitted). Rule 60(b)(6) is to be “used sparingly as an equitable remedy to prevent

18
manifest injustice and is to be utilized only where extraordinary circumstances prevented a party
19

from taking timely action to prevent or correct an erroneous judgment.” Harvest v. Castro, 531

20
F.3d 737, 749 (9th Cir. 2008) (internal quotations omitted).
21
Here, Plaintiff does not indicate under what provision of either Rule 59(e) or Rule 60(b)
22
reconsideration is warranted. In any case, he presents no valid basis for reconsideration under
23
either Rule 59(e) or Rule 60(b). As explained below, he alleges no new evidence that could not
24
have been discovered with due diligence. While he makes certain conclusory arguments to this
25
effect, he fails to show mistake, inadvertence, surprise, excusable neglect, fraud by the adverse
26
party, or voiding of the judgment. Finally, he does not provide any other reason justifying relief,
27
such as extraordinary circumstances.
28
3

Instead, as briefly mentioned above, in a conclusory fashion, Plaintiff’s four-page motion

1
2

states that he seeks reconsideration on the grounds that the Court failed to consider his allegations

3

that his constitutional rights were violated. Dkt. 16 at 2. As the Court noted, if Plaintiff’s

4

claims—that his attorney violated his right to counsel by failing to provide him with effective

5

assistance of counsel—are proven true, this would imply the invalidity of his conviction. Thus,

6

the basis of the Court’s Order of Dismissal was that, as a collateral consequence of proving his

7

claims in the complaint, the validity of the conviction would be called into question. As explained

8

in the Court’s May 20, 2016 Order, Heck requires the dismissal of such claims. Dkt. 14 at 2

9

(citing Heck, 512 U.S. at 487). Furthermore, it is clear the conviction has yet to be invalidated as

10

Plaintiff has not alleged anything to the contrary. Until then, the claims are barred by Heck.

United States District Court
Northern District of California

11

Plaintiff also seems to seek reconsideration by stating that he wishes to amend his

12

complaint to indicate that Defendant “does in fact work/act under the color of state law” and was

13

“entrusted with the capacity to perform up to the standards set forth by the State Bar of California,

14

excluding malpractice and negligence, which is in fact the case before this Honorable Court.”

15

Dkt. 16 at 1-2. However, such an amendment is not warranted as defense attorneys, whether

16

retained or appointed, such as Defendant, cannot be sued under Section 1983 because they do not

17

act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 318-19 (1981) (public

18

defenders); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977) (neither appointed nor

19

retained defense attorneys act under color of state law).
Accordingly, the motion for reconsideration is DENIED. Dkt. 16.

20
21

III.

CONCLUSION

22

For the foregoing reasons, the Court orders as follows:

23

1.

Plaintiff’s Motion for Reconsideration is DENIED. Dkt. 16.

24

2.

This Order terminates Docket No. 16.

25

IT IS SO ORDERED.

26
27
28

Dated: February 17, 2017
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge
4