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)

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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

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