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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,
United States District Court
Northern District of California

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Plaintiff,

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v.

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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)

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Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to

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42 U.S.C. § 1983 against medical officials at Pelican Bay State Prison (“PBSP”), where

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Plaintiff was formerly housed. Finding the complaint stated a cognizable Eighth

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Amendment claim for deliberate indifference to serious medical needs, the Court issued an

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order of service and directed Defendants to file a motion for summary judgment or other

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dispositive motion. (Docket No. 53.) Defendants filed a summary judgment motion,

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(Docket No. 77), to which Plaintiff filed opposition, (Docket No. 86), and Defendants filed

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a reply, (Docket No. 87). The Court granted the motion with respect to Defendants S.

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Risenhoover and N. Adam, and dismissed the Eighth Amendment claims against them

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with prejudice. (Docket No. 99.) The Court ordered remaining Defendants McCall and

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Afdahl to file a renewed motion for summary judgment. (Id.) Defendants filed the

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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

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that were dismissed against Defendants Risenhoover and Adams under Rules 59(e) and

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60(b) of the Federal Rules of Civil Procedure. (Docket No. 100.) Defendants oppose the

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motion, (Docket No. 106), and Plaintiff filed a reply, (Docket No. 112).

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Plaintiff has also filed a motion for a preliminary injunction or temporary

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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

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United States District Court
Northern District of California

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judgment motion, (Docket No. 111), and a motion requesting judicial notice, (Docket No.

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107).

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DISCUSSION

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A.

Motion for Reconsideration

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Federal Rule of Civil Procedure 59(e) provides that a “motion to alter or amend a

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judgment must be filed no later than 28 days after the entry of the judgment.” Judgment

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has yet been entered in this matter. Accordingly, the motion under Rule 59(e) is denied as

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premature.

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On the other hand, Rule 60(b) provides grounds for relief “from a final judgment,

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order, or proceeding.” Fed. R. Civ. P. 60(b) (italics added). Rule 60(b) provides for

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reconsideration where one or more of the following is shown: (1) mistake, inadvertence,

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surprise or excusable neglect; (2) newly discovered evidence which by due diligence could

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not have been discovered in time to move for a new trial; (3) fraud by the adverse party;

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(4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason

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justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263

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(9th Cir.1993).
Motions for reconsideration should not be frequently made or freely granted; they

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are not a substitute for appeal or a means of attacking some perceived error of the court.

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See Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir.

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1981). “‘[T]he major grounds that justify reconsideration involve an intervening change of

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controlling law, the availability of new evidence, or the need to correct a clear error or

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prevent manifest injustice.’” Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d

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364, 369 n.5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d

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713, 715 (9th Cir. 1970)).

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In his motion to alter or amend the judgment, Plaintiff asserts that the Court’s

United States District Court
Northern District of California

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ruling is “erroneous and is incorrect as a matter of law.” (Docket No. 100 at 1.) Plaintiff

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asserts that his papers included statements by which it could be inferred that Defendant

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Risenhoover denied Plaintiff tramadol because of a policy rather than the exercise of

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medical judgment and therefore constitutes evidence that Defendant acted with deliberate

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indifference to a serious medical need. (Id. at 2.) In opposition, Defendants argue that

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Plaintiff’s motion should be denied because he simply restates the same arguments from

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his opposition to their summary judgment motion and fails to show that the Court

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committed clear error. (Docket No. 106 at 1.) In reply, Plaintiff first asserts that

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reconsideration is warranted under Rule 59(e). (Docket No. 112.) However, as stated

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above, judgment has not yet been entered in this matter, and therefore a motion under Rule

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59(e) is premature.

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The Court finds Plaintiff has failed to show that he is entitled to reconsideration

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based on any of the factors under Rule 60(b). Plaintiff’s argument ignores the fact that the

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Court considered all the evidence submitted in finding that Defendant Risenhoover did not

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violate Plaintiff’s Eighth Amendment rights, including Plaintiff’s declaration, exhibits and

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medical records produced by both parties. Based upon the evidence presented, the Court

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found Defendants had shown the absence of a genuine issue of material fact with respect to

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Plaintiff’s deliberate indifference claim. (Docket No. 99 at 12.) As Defendants argue, the

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existence of a policy to combat the opioid epidemic does not negate the medical judgment

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exercised by Defendants in deciding to taper Plaintiff of tramadol. (Docket No. 106 at 4.)

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The undisputed evidence showed that Defendants did not believe that tramadol was

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medically indicated. (Docket No. 99 at 10.) In reply, Plaintiff again asserts that there was

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sufficient evidence to support his Eighth Amendment claim and challenges the evidence

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submitted by Defendants in support of their summary judgment motion. (Docket No. 112.)

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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

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United States District Court
Northern District of California

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error or prevent manifest injustice. See Hodel, 882 F.2d at 369 n.5. Accordingly, the

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Court is not persuaded that its ruling was either erroneous or incorrect. Plaintiff’s motion

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for reconsideration is DENIED.

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B.

Motion for Preliminary Injunction or Temporary Restraining Order

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Plaintiff moves for an order for preliminary injunction or temporary restraining

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order against “defendants, employees, counsel for defendants, agents, servants, and all

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persons working in concert with defendants to cease denying plaintiff his legal papers or

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documents related to this case, study research information, physical law library access,

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canteen to purchase legal envelopes, stationary, writing paper, 1st class postage stamps,

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prescribed eyeglasses, and preventing defendants and those working in concert with

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defendants from mishandling plaintiff’s outgoing and incoming legal mail related to this

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case addressed to or from the United States Northern District Court.” (Docket No. 109 at

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1-2.)

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Plaintiff is currently incarcerated at the California State Prison – Sacramento.

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(Docket No. 40.) The remaining Defendants in this action, M. McCall and J. Afdahl, are

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employees at PBSP where the underlying events occurred. (Docket No. 53 at 2.) An

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injunction is binding only on parties to the action, their officers, agents, servants,

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employees and attorneys and those "in active concert or participation” with them. Fed. R.

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Civ. P. 65(d). In order to enforce an injunction against an entity, the district court must

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have personal jurisdiction over that entity. In re Estate of Ferdinand Marcos, 94 F.3d 539,

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545 (9th Cir. 1996). The court should not issue an injunction that it cannot enforce. Id.

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This Court has no jurisdiction over CSP-Sacramento or its employees in this action which

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involves only employees at PBSP. Accordingly, the motion must be denied. Id.

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C.

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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

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United States District Court
Northern District of California

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limited access to materials, such as envelopes, postage, and legal supplies, that the case

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presents “complex and scientific issues” that are outside the scope of his understanding

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and education, and that he is unskilled in the law. (Docket No. 110 at 3-5, 9.)

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As Plaintiff has twice been informed, there is no constitutional right to counsel in a

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civil case unless an indigent litigant may lose his physical liberty if he loses the litigation.

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See Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action),

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withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en

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banc). The decision to request counsel to represent an indigent litigant under § 1915 is

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within “the sound discretion of the trial court and is granted only in exceptional

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circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). The difficulties

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Plaintiff raises again in this recent motion are no different than those any other prisoner

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faces. Accordingly, the motion is DENIED without prejudice for lack of exceptional

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circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th

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Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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Plaintiff also asserts that he has been diagnosed with a serious mental health illness

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which causes mood swings and anxiety, and that it prevents him at times from doing

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“adequate study and research.” (Docket No. 110 at 9-10.) Generally, a plaintiff that

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shows at least some ability to articulate his claims is not entitled to appointment of

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counsel, regardless of whether he has mental and physical health problems or is

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incarcerated. See, e.g., Warren v. Harrison, 244 Fed. Appx. 831, 832 (9th Cir. 2007)

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(holding that an inmate plaintiff who had alleged mental illness did not qualify for

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appointment of counsel because he competently presented his claims and attached three

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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

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United States District Court
Northern District of California

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counsel because he demonstrated an ability to articulate his claims pro se); Palmer v.

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Valdez, 560 F.3d 965, 970 (2009) (holding that an inmate plaintiff who was suffering pain

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from a surgery and had limited access to legal documents did not require appointment of

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counsel because he did a good job presenting his case, was well organized, made clear

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points, and presented evidence effectively). Here, as in the cases cited above, Plaintiff has

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shown an ability to articulate his claims and litigate this action in spite of his mental health

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issues: Plaintiff seeks damages for Defendants’ deliberate indifference to his serious

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medical needs. (Compl. at 3.) Furthermore, this issue is not particularly complex as

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alleged. Accordingly, Plaintiff’s request for appointment of counsel is DENIED without

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prejudice for lack of exceptional circumstances. See Agyeman, 390 F.3d at 1103; Rand,

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113 F.3d at 1525; Terrell, 935 F.2d at 1017; Wilborn, 789 F.2d at 1331. This denial is

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without prejudice to the Court’s sua sponte appointment of counsel at a future date should

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the circumstances of this case warrant such appointment.

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D.

Motion for Extension of Time

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Plaintiff has filed a motion for extension of time to file opposition or stay of

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proceedings in light of his pending motions. (Docket No. 111.) Good cause appearing, the

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motion is GRANTED. The Court has ruled on all his pending motions in this order.

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Accordingly, the Court shall set a new deadline for Plaintiff’s opposition at the end of this

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order.

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E.

Request for Judicial Notice

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Plaintiff has a filed a request for judicial notice of documents establishing his

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“indigent mail status.” (Docket No. 107.) These documents appear to relate to his motion

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for a preliminary injunction discussed above. See supra at 4. As stated above, CSP-

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Sacramento is not a party to this action, and therefore the Court cannot enforce an

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injunction against that prison or its employees. Accordingly, the motion for judicial notice

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is DENIED as irrelevant and pertaining to matters beyond the scope of this action.

United States District Court
Northern District of California

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CONCLUSION

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For the reasons discussed above, Plaintiff’s motion to alter or amend judgment is

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DENIED. (Docket No. 100.) Plaintiff’s motions for a preliminary injunction, (Docket No.

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109), for appointment of counsel, (Docket No. 110), and for judicial notice, (Docket No.

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107), are DENIED.

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Plaintiff’s motion for an extension of time to file opposition to Defendants’

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summary judgment motion, (Docket No. 111), is GRANTED. Plaintiff’s opposition shall

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be filed no later than twenty-eight (28) days from the date this order is filed. Defendants

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shall file a reply brief no later than fourteen (14) days after Plaintiff’s opposition is filed.

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This order terminates Docket Nos. 100, 107, 109, 110, and 111.

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IT IS SO ORDERED.

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Dated: _October 22, 2019_

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Denying M. to Alter or Amend; Pending Mots.
PRO-SE\BLF\CR.17\00326Hollis_deny.recon&mots

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