Moody v. Unknown

Filing 58

ORDER Denying In Part and Granting in Part Plaintiff's 43 Motion to Alter, Amend or Vacate Judgment and Granting Extension of Time to Re-Attempt U.S. Marshal Service Upon Defendant Manoram Reddy Pursuant to Fed.R.Civ.P. 4(m): Plaintiff shall c omplete the new USM Marshal Form 285 provided to him, and shall return it to the United States Marshal, along with all the necessary materials described in the Clerk's letter accompanying his IFP package, no later than July 9, 2010. Signed by Judge Larry Alan Burns on 6/9/10. (All non-registered users served via U.S. Mail Service, IFP package sent )(pdc)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C u rre n tly before the Court is Plaintiff's "Motion to Alter or Vacate or Amend Judgment [ F ED.R .C IV.P . 59]" [Doc. No. 43] in which he seeks reconsideration of the Court's April 2, 2010 O rd e r [Doc. No. 38]. I. P r o c e d u r a l Background The Court's April 2, 2010 Order: 1) dismissed unserved Defendant Manoram Reddy on g ro u n d s that Plaintiff had failed to effect service upon her pursuant to FED.R.CIV.P. 4(m), (April 2 , 2010 Order at 4-5, 20); 2) denied Defendant Finander, Ball and Butcher's Motions to Dismiss 1 vs. P A U L E T T E FINANDER, Chief Medical O ff icer; K. BALL, Chief Medical Officer; R IC H A R D BUTCHER, MD; and M A N O R A M REDDY, Medical Care P rov ider, D e f e n d a n ts . F L O Y D MOODY, C D C R #G-26035, P l a in tif f , O R D E R DENYING IN PART AND G R A N T I N G IN PART PLAINTIFF'S M O T I O N TO ALTER, AMEND OR V A C A T E JUDGMENT AND G R A N T I N G EXTENSION OF TIME T O RE-ATTEMPT U.S. MARSHAL SERVICE UPON DEFENDANT M A N O R A M REDDY PURSUANT TO FED.R.CIV.P. 4(m) [D o c . No. 43] Civil No. 09-0892 LAB (BGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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P la in tif f 's Eighth Amendment inadequate medical care claims pursuant to FED.R.CIV.P. 1 2 (b )( 6 ), (id. at 7-11, 20); 3) granted Defendant Finander, Ball and Butcher's Motions to D ism iss Plaintiff's conspiracy claims without leave to amend pursuant to FED.R.CIV.P. 12(b)(6), (id . at 11-12 & n.2, 21); 4) denied Plaintiff's Motions for Appointment of Counsel, Preliminary In ju n c t i o n and Leave to Amend, (id. at 17-19, 21); 5) granted Plaintiff's Motion Requesting V e rif ic a tio n of Fee Payment, (id. at 20, 21); and 6) ordered Defendants Finander, Ball and B u tch e r to Answer the Eighth Amendment claims remaining in Plaintiff's Amended Complaint.1 (Id . at 21.) II. P la in t iff's Motion A. G rounds

P lain tiff seeks reconsideration pursuant to Rule 59 of the Federal Rules of Civil P r o c e d u re on grounds that he should have been permitted: 1) an opportunity to present and p ro d u c e evidence before the Court dismissed his conspiracy claims, (see Pl.'s Mot. [Doc. No. 4 3 ] at 3-4); 2) leave to file a supplemental complaint pursuant to FED.R.CIV.P. 15(d) in order to a d d re ss "ongoing" and subsequent constitutional violations arising at Salinas Valley State Prison s in c e he initiated this action, (see Pl.'s Mem. or P&As in Supp. of Mot. [Doc. No. 43-1] at 1-2); a n d 3) an extension of time in which to attempt "re-service" of his Amended Complaint upon D e f e n d a n t Reddy. (See Pl.'s Mot. at 1, 3; Pl.'s P&A's at 3.)2 P la in tif f 's Motion was filed without proof of service by mail on any Defendant or counsel f o r any Defendant. See FED.R.CIV.P. 5(a)(1)(D) (requiring "written motion[s], except one that m a y be heard ex parte" be "served on every party."), FED.R.CIV.P. 5(d)(1) ("Any paper after the

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On April 15, 2010, Defendants Finander, Ball and Butcher filed their Answers [Doc. Nos. 39,

40]. Plaintiff also acknowledges that the Court's April 2, 2010 Order verifying his satisfaction of the $350 filing fee required by 28 U.S.C. § 1914(a) was "just," but further requests that this Court "address the erroneous deduction" of $44 from his prison trust account. (See Pl.'s Mot. at 3.) The Court has already verified, however, that it has not collected any fees which "exceed the amount of fees permitted by the statute for the commencement of [this] civil action." 28 U.S.C. § 1915(b)(4). Any further inquiry Plaintiff may wish to pursue regarding a Salinas Valley State Prison trust account "decision, action, condition or policy" must be addressed through the California Department of Corrections and Rehabilitation's inmate/parolee administrative appeal procedure. See CAL. CODE REGS., tit. 15 § 3084.1(a) (2009).
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c o m p lain t that is required to be served­together with a certificate of service­must be filed within a reasonable time after service."). Perhaps consequently, no Defendant has filed an Opposition. B. S ta n d a r d of Review

If a motion to reconsider is filed within [28] days of the district court's order on the m o tio n to strike and/or dismiss, the court will treat the motion as a Rule 59(e) motion.3 Zamani v . Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Circuit City Stores, Inc. v. Mantor, 417 F.3d 1 0 6 0 , 1064 (9th Cir. 2005)). A Rule 59(e) motion is properly granted "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was m a n if e s tly unjust, or (3) if there is an intervening change in controlling law." Dixon v. Wallowa C o u n ty , 336 F.3d 1013, 1022 (9th Cir. 2003). " A motion for reconsideration under Rule 59(e) should not be granted, absent highly u n u s u a l circumstances." McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003). This type o f motion seeks "a substantive change of mind by the court." Tripati v. Henman, 845 F.2d 205, 2 0 6 n.1 (9th Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1 9 8 3 )). Most significantly in relation to Plaintiff's case, "motions to reconsider are not vehicles p e rm ittin g the unsuccessful party to `rehash' arguments previously presented." United States v . Navarro, 972 F. Supp. 1296, 1299 (E.D. Cal. 1997) (rejecting "after thoughts" and "shifting o f ground" as appropriate grounds for reconsideration under FED.R.CIV.P. 59(e)). C. A p p lic a t io n to Plaintiff's Case

P la in tif f first asks the Court to reconsider the dismissal of his conspiracy claims without le a v e to amend against Defendants Finander, Ball and Butcher on grounds that he should be p e rm itte d an "opportunity to present evidence" which would "remove doubt" that a conspiracy "d id, in fact, exist." (Pl.'s Mot. at 2.) ///

Effective December 1, 2009, FED.R.CIV.P. 59(b) and 59(e) provide that the time for filing a motion for new trial or to alter or amend a judgment must be filed "no later than 28 days after the entry of the judgment." FED.R.CIV.P. 59(b), (e). Before December 1, 2009, the time limit was 10 days. See SLR Partners, LLC v. B. Braun Medical Inc., 2010 WL 330088 at *2 n.2 (S.D. Cal. 2010) (unpub.) ("Effective December 1, 2009, Federal Rule of Civil Procedure 59(e) gives parties 28 days to file a motion to alter or amend a judgment.").
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A s discussed in the Court's April 2, 2010 Order, however, a Motion to Dismiss brought p u rs u a n t to FED.R.CIV.P. 12(b)(6) determines simply whether the complaint contains enough f a ctu a l content "to raise a reasonable expectation that discovery will reveal evidence" of the c la im . Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The Court found that the vague P lain tif f ' s vague and conclusory allegations of conspiracy failed to meet this plausibility s ta n d a rd , and that to the extent they amounted to mere speculation, amending them would be fu tile . See April 2, 2010 Order at 11-12 & n.2. Plaintiff has not shown how the Court's c o n c lu s io n was "clear error" or "manifestly unjust." Dixon, 336 F.3d at 1022. Second, Plaintiff seeks reconsideration of the Court's denial of injunctive relief related to "ongoing" incidents at Salinas Valley State Prison ("SVSP") and leave to supplement his p lea d in g with new constitutional violations arising at SVSP subsequent to the initiation of this a c tio n . See Pl.'s Mot. at 2-3; P&A's at 1-3. In its April 2, 2010 Order, the Court denied P la in tif f 's Motion for injunctive relief because it lacked jurisdiction over the parties Plaintiff s o u g h t to enjoin. See April 2, 2010 Order at 18-19. The Court further denied Plaintiff's Motion f o r Leave to file a Supplemental Complaint adding new inadequate medical care and due process c la im s against SVSP officials pursuant to FED.R.CIV.P. 15(d) because alleging those claims in th is case would violate 42 U.S.C. § 1997e(a)'s pre-suit administrative exhaustion requirement. Id . at 19 (citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); Vaden v. Summerhill, 4 4 9 F.3d 1047, 1051 (9th Cir. 2006)). Plaintiff's current Motion does not address either of these c o n c lu s io n s ; instead it seeks reconsideration because these new claims are "closely connected," " o n g o in g " and now left "unchecked." (See Pl.'s P&A's at 1-2.) These arguments, however, do n o t justify relief under Rule 59(e) because they do not show "clear error" and instead merely " re h a sh arguments previously presented." S u p p . at 1299. Federal Rule of Civil Procedure 59(e) does not permit reconsideration merely because P lain tiff is unhappy with the judgment, frustrated by the Court's application of the facts to b i n d i n g precedent or because he disagrees with the ultimate decision. See 11 Charles Alan W rig h t & Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2009) (citing 4 McQuillion, 342 F.3d at 1014; Navarro, 972 F.

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E d w a r d s v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Accordingly, Plaintiff's Motion to Alter/Amend or Vacate its April 2, 2010 Order must be denied. See FED.R.CIV.P. 59(e). However, the Court does find good cause to extend the time in which Plaintiff may rea ttem p t service of his Amended Complaint and summons upon Defendant Reddy pursuant to F ED.R .C IV.P . 4(m). Rule 4 of the Federal Rules of Civil Procedure provides that: If a defendant is not served within 120 days after the complaint is file d , the court­on motion or on its own after notice to the p la in tif f ­ m u s t dismiss the action without prejudice against that d e fe n d a n t or order that service be made within a specified time. But is the plaintiff shows good cause for the failure, the court must e x te n d the time for service for an appropriate period. F ED.R .C IV.P . 4(m). In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the c o u rt, shall serve the summons and the complaint. FED.R.CIV.P. 4(c)(3); 28 U.S.C. § 1915(d) (in IFP proceedings, "[t]he officers of the court shall issue and serve all process, and perform all d u ties in such cases."). "`[A]n incarcerated pro se plaintiff proceeding in forma pauperis is e n title d to rely on the U.S. Marshal for service of the summons and complaint.'" Walker v. S u m n e r, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett, 912 F.2d at 275), abrogated on other g r o u n d s by Sandin v. Conner, 515 U.S. 472 (1995). A marshal's or court clerk's delays or errors constitute "good cause" to avoid dismissal u n d er FED.R.CIV.P. 4(m). Puett, 912 F.2d at 273. Therefore, "[s]o long as the prisoner has fu rn is h e d the information necessary to identify the defendant, the marshal's failure to effect s e rv ic e is `automatically good cause'" for extending the time for service. Walker, 14 F.3d at 1 4 2 2 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). In fact, the Court e n jo y s broad discretion under Rule 4(m) to extend time for service even without a showing of g o o d cause. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001); Mann v. American Airlines, 324 F .3 d 1088, 1090 (9th Cir. 2003) (holding that district court may, under the broad discretion g ra n te d by FED.R.CIV.P. 4(m), extend time for service retroactively after the 120-day service p eriod has expired). 5

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H o w e v e r, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient in fo rm a tio n to effect service of the summons and complaint, the court's sua sponte dismissal of th e unserved defendants is appropriate. Walker, 14 F.3d at 1421-22; see also Rochon v. Dawson, 8 2 8 F.2d 1107, 1110 (5th Cir. 1987) (noting that plaintiff "may not remain silent and do nothing to effectuate such service"; rather, "[a]t a minimum, a plaintiff should request service upon the a p p ro p ria te defendant and attempt to remedy any apparent defects of which [he] has k n o w ledg e."). In its April 2, 2010 Order, the Court found that because Plaintiff had failed to execute s e rv ic e via the U.S. Marshal upon Defendant Reddy within the 120 days permitted by F ED.R .C IV.P . 4(m), and had not requested an extension of time in which to either locate or rea tte m p t service upon Reddy after the summons was returned unexecuted on August 12, 2009, d is m is s a l of Reddy was appropriate. Walker, 14 F.3d at 1421-22; Rochon, 828 F.2d at 1110. In his Motion, however, Plaintiff now asks that service be "re-issued" upon Reddy because he w a s unaware of the service failure and "was under the impression that there would be a specific p h a s e appointed ... to call to mandate [any] [de]fects." (Pl.'s Mot. at 3.) T h u s, because Plaintiff's Eighth Amendment claims against Defendant Reddy are su b sta n tially similar to those alleged and found sufficient to survive Defendant Finander, Ball a n d Butcher's Motions to Dismiss, (Amend. Compl. at 2, 6; Pl.'s Attach. to Amend. Compl. at 1 0 -1 2 ), the Court finds good cause to re-issue the materials necessary to re-attempt service upon R e d d y , and to grant Plaintiff an extension of time pursuant to FED.R.CIV.P. 4(m) within which to do so. See In re Sheehan, 253 F.3d at 513; Mann, 324 F.3d at 1090. III. C o n c lu s io n and Order F o r the reasons set forth above, the Court hereby: 1 ) DENIES in part and GRANTS in part Plaintiff's Motion to Alter, Amend or Vacate th e Court's April 2, 2010 Order pursuant to FED.R.CIV.P. 59(e) [Doc. No. 43]. Plaintiff's M o tio n is GRANTED only to the extent it includes a request for an extension of time in which to re-attempt service upon Defendant Reddy. /// 6

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2)

D IR E C T S the Clerk of Court to provide Plaintiff with an additional "IFP Package"

c o n sis tin g of: (a) two certified copies of this Order; (b) two certified copy of the Court's July 1 7 , 2009 Order Granting IFP and Directing U.S. Marshal Service of Plaintiff's First Amended C o m p lain t [Doc. No. 10]; (c) two certified copies of the First Amended Complaint and its A tta c h m e n t [Doc. Nos. 4, 4-1]; (d) an embossed alias summons on Plaintiff's First Amended C o m p la in t (and one copy); and (e) one blank USM Form 285 for purposes of re-attempting s e rv ic e as to Defendant Manoram Reddy. 2) GRANTS Plaintiff an extension of time to effect service upon Defendant Reddy

p u rs u a n t to FED.R.CIV.P. 4(m). Plaintiff shall complete, as accurately and clearly as possible, th e new USM Marshal Form 285 provided to him, and shall return it to the United States M a rsh a l, along with all the necessary materials described in the Clerk's letter accompanying his IF P package, no later than July 9, 2010. 3) IT IS FURTHER ORDERED that pursuant to FED.R.CIV.P. 4(c)(3), (m) and 28

U .S .C . § 1915(d), the U.S. Marshal shall, within 30 days of receiving Plaintiff's new USM Form 2 8 5 , re-attempt service of Plaintiff's Amended Complaint and summons upon Defendant Reddy a s directed by Plaintiff. All costs of service shall be advanced by the United States pursuant to th e Court's July 17, 2009 Order granting Plaintiff leave to proceed IFP and directing service p u rs u a n t to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(3). I T IS SO ORDERED.

D A T E D : June 9, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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