Hollis v. Reisenhoover et al

Filing 113

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT; DENYING MOTION FOR PRELIMINARY INJUNTION; DENYING MOTION FOR APPOINTMENT OF COUNSEL; GRANTING EXTENSION OF TIME TO FILE OPPOSITION; DENYING MOTION FOR JUDICIAL NOTICE by Judge Beth Labson Freeman. Denying 100 Motion to Alter Judgment; Denying 107 Motion ; Denying 109 Motion for Preliminary Injunction; Denying 110 Motion to Appoint Counsel ; Granting 111 Motion for Extension of Time to File.Opposition to Defendants' Summary Judgment Motion due by 11/19/2019. (Attachments: # 1 Certificate/Proof of Service)(tshS, COURT STAFF) (Filed on 10/22/2019)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MARVIN GLENN HOLLIS, United States District Court Northern District of California 11 Plaintiff, 12 13 v. 14 15 16 17 NURSE REISENHOOVER, et al., Defendants. Case No. 17-00326 BLF (PR) ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT; DENYING MOTION FOR PRELIMINARY INJUNCTION; DENYING MOTION FOR APPOINTMENT OF COUNSEL; GRANTING EXTENSION OF TIME TO FILE OPPOSITION; DENYING MOTION FOR JUDICIAL NOTICE (Docket Nos. 100, 107, 109, 110, 111) 18 19 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 20 42 U.S.C. § 1983 against medical officials at Pelican Bay State Prison (“PBSP”), where 21 Plaintiff was formerly housed. Finding the complaint stated a cognizable Eighth 22 Amendment claim for deliberate indifference to serious medical needs, the Court issued an 23 order of service and directed Defendants to file a motion for summary judgment or other 24 dispositive motion. (Docket No. 53.) Defendants filed a summary judgment motion, 25 (Docket No. 77), to which Plaintiff filed opposition, (Docket No. 86), and Defendants filed 26 a reply, (Docket No. 87). The Court granted the motion with respect to Defendants S. 27 Risenhoover and N. Adam, and dismissed the Eighth Amendment claims against them 28 1 with prejudice. (Docket No. 99.) The Court ordered remaining Defendants McCall and 2 Afdahl to file a renewed motion for summary judgment. (Id.) Defendants filed the 3 renewed summary judgment motion on October 1, 2019. (Docket No. 104.) Plaintiff has filed a motion to alter or amend the judgment with respect to the claims 4 5 that were dismissed against Defendants Risenhoover and Adams under Rules 59(e) and 6 60(b) of the Federal Rules of Civil Procedure. (Docket No. 100.) Defendants oppose the 7 motion, (Docket No. 106), and Plaintiff filed a reply, (Docket No. 112). 8 Plaintiff has also filed a motion for a preliminary injunction or temporary 9 restraining order, (Docket No. 109), a motion for appointment of counsel, (Docket No. 110), a motion for extension of time to file opposition to Defendants’ renewed summary 11 United States District Court Northern District of California 10 judgment motion, (Docket No. 111), and a motion requesting judicial notice, (Docket No. 12 107). 13 DISCUSSION 14 15 A. Motion for Reconsideration 16 Federal Rule of Civil Procedure 59(e) provides that a “motion to alter or amend a 17 judgment must be filed no later than 28 days after the entry of the judgment.” Judgment 18 has yet been entered in this matter. Accordingly, the motion under Rule 59(e) is denied as 19 premature. 20 On the other hand, Rule 60(b) provides grounds for relief “from a final judgment, 21 order, or proceeding.” Fed. R. Civ. P. 60(b) (italics added). Rule 60(b) provides for 22 reconsideration where one or more of the following is shown: (1) mistake, inadvertence, 23 surprise or excusable neglect; (2) newly discovered evidence which by due diligence could 24 not have been discovered in time to move for a new trial; (3) fraud by the adverse party; 25 (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason 26 justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 27 28 2 1 2 (9th Cir.1993). Motions for reconsideration should not be frequently made or freely granted; they 3 are not a substitute for appeal or a means of attacking some perceived error of the court. 4 See Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 5 1981). “‘[T]he major grounds that justify reconsideration involve an intervening change of 6 controlling law, the availability of new evidence, or the need to correct a clear error or 7 prevent manifest injustice.’” Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 8 364, 369 n.5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d 9 713, 715 (9th Cir. 1970)). 10 In his motion to alter or amend the judgment, Plaintiff asserts that the Court’s United States District Court Northern District of California 11 ruling is “erroneous and is incorrect as a matter of law.” (Docket No. 100 at 1.) Plaintiff 12 asserts that his papers included statements by which it could be inferred that Defendant 13 Risenhoover denied Plaintiff tramadol because of a policy rather than the exercise of 14 medical judgment and therefore constitutes evidence that Defendant acted with deliberate 15 indifference to a serious medical need. (Id. at 2.) In opposition, Defendants argue that 16 Plaintiff’s motion should be denied because he simply restates the same arguments from 17 his opposition to their summary judgment motion and fails to show that the Court 18 committed clear error. (Docket No. 106 at 1.) In reply, Plaintiff first asserts that 19 reconsideration is warranted under Rule 59(e). (Docket No. 112.) However, as stated 20 above, judgment has not yet been entered in this matter, and therefore a motion under Rule 21 59(e) is premature. 22 The Court finds Plaintiff has failed to show that he is entitled to reconsideration 23 based on any of the factors under Rule 60(b). Plaintiff’s argument ignores the fact that the 24 Court considered all the evidence submitted in finding that Defendant Risenhoover did not 25 violate Plaintiff’s Eighth Amendment rights, including Plaintiff’s declaration, exhibits and 26 medical records produced by both parties. Based upon the evidence presented, the Court 27 28 3 1 found Defendants had shown the absence of a genuine issue of material fact with respect to 2 Plaintiff’s deliberate indifference claim. (Docket No. 99 at 12.) As Defendants argue, the 3 existence of a policy to combat the opioid epidemic does not negate the medical judgment 4 exercised by Defendants in deciding to taper Plaintiff of tramadol. (Docket No. 106 at 4.) 5 The undisputed evidence showed that Defendants did not believe that tramadol was 6 medically indicated. (Docket No. 99 at 10.) In reply, Plaintiff again asserts that there was 7 sufficient evidence to support his Eighth Amendment claim and challenges the evidence 8 submitted by Defendants in support of their summary judgment motion. (Docket No. 112.) 9 Plaintiff has failed to establish that he is entitled to reconsideration based on an intervening change of controlling law, the availability of new evidence, or the need to correct a clear 11 United States District Court Northern District of California 10 error or prevent manifest injustice. See Hodel, 882 F.2d at 369 n.5. Accordingly, the 12 Court is not persuaded that its ruling was either erroneous or incorrect. Plaintiff’s motion 13 for reconsideration is DENIED. 14 B. Motion for Preliminary Injunction or Temporary Restraining Order 15 Plaintiff moves for an order for preliminary injunction or temporary restraining 16 order against “defendants, employees, counsel for defendants, agents, servants, and all 17 persons working in concert with defendants to cease denying plaintiff his legal papers or 18 documents related to this case, study research information, physical law library access, 19 canteen to purchase legal envelopes, stationary, writing paper, 1st class postage stamps, 20 prescribed eyeglasses, and preventing defendants and those working in concert with 21 defendants from mishandling plaintiff’s outgoing and incoming legal mail related to this 22 case addressed to or from the United States Northern District Court.” (Docket No. 109 at 23 1-2.) 24 Plaintiff is currently incarcerated at the California State Prison – Sacramento. 25 (Docket No. 40.) The remaining Defendants in this action, M. McCall and J. Afdahl, are 26 employees at PBSP where the underlying events occurred. (Docket No. 53 at 2.) An 27 28 4 1 injunction is binding only on parties to the action, their officers, agents, servants, 2 employees and attorneys and those "in active concert or participation” with them. Fed. R. 3 Civ. P. 65(d). In order to enforce an injunction against an entity, the district court must 4 have personal jurisdiction over that entity. In re Estate of Ferdinand Marcos, 94 F.3d 539, 5 545 (9th Cir. 1996). The court should not issue an injunction that it cannot enforce. Id. 6 This Court has no jurisdiction over CSP-Sacramento or its employees in this action which 7 involves only employees at PBSP. Accordingly, the motion must be denied. Id. 8 C. 9 Motion for Appointment of Counsel Plaintiff has also filed a motion for appointment of counsel, (Docket No. 110), which is now his third such motion. (See Docket Nos. 63, 83.) Plaintiff asserts that he has 11 United States District Court Northern District of California 10 limited access to materials, such as envelopes, postage, and legal supplies, that the case 12 presents “complex and scientific issues” that are outside the scope of his understanding 13 and education, and that he is unskilled in the law. (Docket No. 110 at 3-5, 9.) 14 As Plaintiff has twice been informed, there is no constitutional right to counsel in a 15 civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. 16 See Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 17 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), 18 withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en 19 banc). The decision to request counsel to represent an indigent litigant under § 1915 is 20 within “the sound discretion of the trial court and is granted only in exceptional 21 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). The difficulties 22 Plaintiff raises again in this recent motion are no different than those any other prisoner 23 faces. Accordingly, the motion is DENIED without prejudice for lack of exceptional 24 circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th 25 Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 26 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 27 28 5 Plaintiff also asserts that he has been diagnosed with a serious mental health illness 1 2 which causes mood swings and anxiety, and that it prevents him at times from doing 3 “adequate study and research.” (Docket No. 110 at 9-10.) Generally, a plaintiff that 4 shows at least some ability to articulate his claims is not entitled to appointment of 5 counsel, regardless of whether he has mental and physical health problems or is 6 incarcerated. See, e.g., Warren v. Harrison, 244 Fed. Appx. 831, 832 (9th Cir. 2007) 7 (holding that an inmate plaintiff who had alleged mental illness did not qualify for 8 appointment of counsel because he competently presented his claims and attached three 9 pertinent exhibits); Miller v. McDaniel, 124 Fed. Appx. 488, 490 (9th Cir. 2005) (holding that an inmate plaintiff with mental health problems was not entitled to appointment of 11 United States District Court Northern District of California 10 counsel because he demonstrated an ability to articulate his claims pro se); Palmer v. 12 Valdez, 560 F.3d 965, 970 (2009) (holding that an inmate plaintiff who was suffering pain 13 from a surgery and had limited access to legal documents did not require appointment of 14 counsel because he did a good job presenting his case, was well organized, made clear 15 points, and presented evidence effectively). Here, as in the cases cited above, Plaintiff has 16 shown an ability to articulate his claims and litigate this action in spite of his mental health 17 issues: Plaintiff seeks damages for Defendants’ deliberate indifference to his serious 18 medical needs. (Compl. at 3.) Furthermore, this issue is not particularly complex as 19 alleged. Accordingly, Plaintiff’s request for appointment of counsel is DENIED without 20 prejudice for lack of exceptional circumstances. See Agyeman, 390 F.3d at 1103; Rand, 21 113 F.3d at 1525; Terrell, 935 F.2d at 1017; Wilborn, 789 F.2d at 1331. This denial is 22 without prejudice to the Court’s sua sponte appointment of counsel at a future date should 23 the circumstances of this case warrant such appointment. 24 D. Motion for Extension of Time 25 Plaintiff has filed a motion for extension of time to file opposition or stay of 26 proceedings in light of his pending motions. (Docket No. 111.) Good cause appearing, the 27 6 28 1 motion is GRANTED. The Court has ruled on all his pending motions in this order. 2 Accordingly, the Court shall set a new deadline for Plaintiff’s opposition at the end of this 3 order. 4 E. Request for Judicial Notice 5 Plaintiff has a filed a request for judicial notice of documents establishing his 6 “indigent mail status.” (Docket No. 107.) These documents appear to relate to his motion 7 for a preliminary injunction discussed above. See supra at 4. As stated above, CSP- 8 Sacramento is not a party to this action, and therefore the Court cannot enforce an 9 injunction against that prison or its employees. Accordingly, the motion for judicial notice 10 is DENIED as irrelevant and pertaining to matters beyond the scope of this action. United States District Court Northern District of California 11 CONCLUSION 12 13 For the reasons discussed above, Plaintiff’s motion to alter or amend judgment is 14 DENIED. (Docket No. 100.) Plaintiff’s motions for a preliminary injunction, (Docket No. 15 109), for appointment of counsel, (Docket No. 110), and for judicial notice, (Docket No. 16 107), are DENIED. 17 Plaintiff’s motion for an extension of time to file opposition to Defendants’ 18 summary judgment motion, (Docket No. 111), is GRANTED. Plaintiff’s opposition shall 19 be filed no later than twenty-eight (28) days from the date this order is filed. Defendants 20 shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed. 21 This order terminates Docket Nos. 100, 107, 109, 110, and 111. 22 IT IS SO ORDERED. 23 Dated: _October 22, 2019_ ________________________ BETH LABSON FREEMAN United States District Judge 24 25 26 27 28 Order Denying M. to Alter or Amend; Pending Mots. PRO-SE\BLF\CR.17\00326Hollis_deny.recon&mots 7

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