Rogers v. Giurbino et al

Filing 14

ORDER denying 13 Motion for Reconsideration. Signed by Judge Irma E. Gonzalez on 9/28/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TYRONE ROGERS,
CDCR #J-45685,

Civil No.

11cv0560 IEG (RBB)

Plaintiff,

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ORDER DENYING MOTION FOR
RECONSIDERATION

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vs.

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G.J. GIURBINO; DOMINGO URIBE, JR.;
R. BRIGGS; D. FOSTON; P. KUZILRUAN; ,

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Defendants.

[ECF No. 13]

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Currently before the Court is Plaintiff’s “Motion to Appeal the Dismissal of Claims Due

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to Failure to State a Claim” which the Court has construed as a Motion for Reconsideration of

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the Court’s dismissal of claims in the August 9, 2011 Order.

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I.

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Procedural History

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On March 21, 2011, Plaintiff filed his original Complaint [ECF No. 1], along with a

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Motion to Proceed in forma pauperis (“IFP”). The Court granted Plaintiff’s Motion to Proceed

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IFP but sua sponte dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C.

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§ 1915(e)(2)(B) and § 1915A(b). See Apr. 20, 2011 Order at 10-11. Plaintiff was granted leave

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to file an Amended Complaint in order to correct the deficiencies of pleading identified in the

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Court’s Order. Id. On May 31, 2011, Plaintiff filed his First Amended Complaint. Once again,

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the Court conducted a sua sponte screening and dismissed Plaintiff’s First Amended Complaint

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with leave to amend. See June 7, 2011 Order at 7-8. Plaintiff filed his Second Amended

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Complaint on July 12, 2011. The Court ultimately dismissed Plaintiff’s Eighth Amendment

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outdoor exercise claims and access to courts claims without leave to amend but directed the

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United States Marshal’s Service to effect service of the remaining religious claims on the

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remaining Defendants. See August 9, 2011 Order at 7-8. On Spetember 20, 2011, Plaintiff filed

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a Motion to Reconsider the dismssal of these claims.

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II.

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Plaintiff’s Motion

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A.

Standard of Review

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Under Rule 60, a motion for “relief from a final judgment, order or proceeding” may be

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filed within a “reasonable time,” but usually must be filed “no more than a year after the entry

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of the judgment or order or the date of the proceeding.” FED.R.CIV.P. 60(c). Reconsideration

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under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable

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neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the

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judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b).

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B.

Plaintiff’s Arguments

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Plaintiff’s arguments, while not entirely clear, appear to rest on his assertion that the

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Court erred in dismissing Plaintiff’s outdoor exercise claims because prison officials used a

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frivolous basis to implement lockdowns that resulted in a loss of outdoor exercise time. Plaintiff

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also claims that the Court “failed to address Plaintiff’s second ground of invalid penological

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interest.” (See Pl.’s Mot. at 1; citing Turner v. Safley, 482 U.S. 78 (1987)). As set forth, at

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length, in the Court’s previous screening Orders, a “penological interest” is not an element to

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either an Eighth Amendment outdoor exercise claim or an access to courts claim. While Plaintiff

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claims in his motion that prison officials used an invalid reason to impose a lockdown, he still

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must allege facts sufficient to state an Eighth Amendment claim. Plaintiff was given several

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chances to amend his pleading as instructed in the Court’s previous Orders. Plaintiff’s Motion
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provides no new basis or facts from which this Court could find that reconsideration is

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appropriate.

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In sum, a motion for reconsideration cannot be granted merely because Plaintiff is

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unhappy with the judgment, frustrated by the Court’s application of the facts to binding

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precedent or because he disagrees with the ultimate decision. See 11 Charles Alan Wright &

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Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2007) (citing Edwards v.

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Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Thus, without more, the Court finds Plaintiff

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has failed to show that the Court rendered a “manifestly unjust decision,” and has further failed

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to identify any intervening changes in controlling law which justify reconsideration of the

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Court’s Order. McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (per

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curiam); School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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III.

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Conclusion and Order

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Accordingly, Plaintiff’s Motion for Reconsideration re Order Dismissing Claims [ECF
No. 13] is DENIED..
IT IS SO ORDERED.

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9/28/11
DATED: _______________________

_________________________________________
HON. IRMA E. GONZALEZ, Chief Judge
United States District Court

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