Beattie v. Romero et al

Filing 35

ORDER Responding to 34 Referral Notice, Revoking Plaintiff-Appellant's in forma pauperis Status. Signed by Judge Marilyn L. Huff on 6/27/2017. (USCA Case Number 17-55833. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL LOUIS BEATTIE,

Case No.: 3:14-cv-01448-H-JMA
Plaintiff,

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ORDER RESPONDING TO
REFERRAL NOTICE, REVOKING
PLAINTIFF-APPELLANT’S IN
FORMA PAUPERIS STATUS

v.
L. ROMERO; et al.,
Defendants.

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[Doc. No. 34]

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On June 13, 2014, Plaintiff Michael Louis Beattie (“Plaintiff”) filed a civil rights

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action, pursuant to 42 U.S.C. § 1983, against correctional officers L. Romero, I. Marquez,

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and I. Ugalde (“Defendants”) alleging excessive use of force. (Doc. No. 1.) Along with

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his complaint, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”).

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(Doc. No. 2.) On June 24, 2014, the Court granted Plaintiff’s motion for leave to proceed

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IFP. (Doc. No. 3.)

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On December 8, 2014, the Court granted summary judgment for Defendants on all

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claims. (Doc. No. 16.) On the record before it, the Court found that Plaintiff had not

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demonstrated that he exhausted his administrative remedies. (Id. at 6.) Plaintiff timely

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appealed the Court’s decision. (Doc. No. 18.) On April 20, 2016, the Court of Appeals

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for the Ninth Circuit affirmed this Court’s decision granting summary judgment to
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3:14-cv-01448-H-JMA

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Defendants because Plaintiff failed to exhaust his administrative remedies. Beattie v. J.

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Romero et al., No. 15-55034 slip op. at 2 (9th Cir. April 20, 2016). On October 4, 2016,

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the Ninth Circuit denied Plaintiff’s motion to rehear the matter en banc. (Doc. No. 23.)

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On October 24, 2016, the Ninth Circuit issued its mandate, affirming the grant of

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summary judgment to Defendants. (Doc. No. 27.)

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On May 8, 2017, Plaintiff filed a motion, pursuant to Federal Rule of Civil

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Procedure 60(b), to amend the Court’s judgment granting summary judgment to

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Defendants. (Doc. No. 29.) Plaintiff argued a recent Ninth Circuit case, Andres v.

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Marshall, No. 15-56057 (9th Cir. April 21, 2017), was materially indistinguishable from

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his case and merited amending the judgment. (Doc. No. 29.) On May 19, 2017, the

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Court denied Plaintiff’s Rule 60(b) motion, distinguishing Andres because there a state

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court had conducted an evidentiary hearing and found that plaintiff had properly

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submitted a grievance in an attempt to exhaust his administrative remedies. (Doc. No. 30

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at 4.) Plaintiff appealed the Court’s order denying his Rule 60(b) motion. (Doc. No. 31.)

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On June 19, 2017, the Ninth Circuit issued a referral notice, asking the Court to

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determine whether Plaintiff’s IFP status should continue on appeal. (Doc. No. 34.)

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Because Plaintiff’s appeal is frivolous, the Court revokes Plaintiff’s IFP status.

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DISCUSSION
A party’s IFP status generally continues on appeal unless revoked by the district

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court. Fed. R. App. 24(a)(3). To revoke the IFP status, the district court must certify in

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writing that “the appeal is not taken in good faith or . . . the party is not otherwise entitled

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to proceed in forma pauperis.” Id. 24(a)(3)(A); see also Hooker v. American Airlines,

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302 F.3d 1091, 1092 (9th Cir. 2002). A district court’s decision to revoke a party’s IFP

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status is reviewed for abuse of discretion. O’Loughlin v. Doe, 920 F.2d 614, 616 (9th

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Cir. 1990).

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Plaintiff’s Rule 60(b) motion and appeal claim that Defendants admit that Plaintiff

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properly submitted his application for final level review. (Doc. No. 29 at 3; Doc. No. 31

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at 2.) Defendants, however, admit no such thing. At summary judgment, Defendants
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argued that Plaintiff had submitted an incomplete application for third-level review,

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which was returned to him with instructions on how to properly resubmit. (Doc. No. 13

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at 2.) Defendants claimed that Plaintiff then failed to resubmit a complete application

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and provided detailed evidence supporting that claim, including the legal mail logs for the

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prison. (Id.) In response, Plaintiff failed to put forward evidence sufficient to raise a

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material question of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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Accordingly, the Court granted summary judgment:

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On the record before the Court, Plaintiff has not exhausted his administrative

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remedies. Defendants’ evidence shows that Plaintiff did not obtain a

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decision at the third level of review, as required to exhaust administrative

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remedies. Furthermore, Defendants provide evidence that there is no record

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of Plaintiff sending legal mail to the third level appeals office on or around

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the date that he claims he used the legal mail process. Plaintiff’s self-

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serving allegations do no rebut this evidence. Furthermore, Plaintiff did not

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provide the Court with any documents to support his assertion.

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(Doc. No. 16 at 6.) The Ninth Circuit affirmed this decision. Beattie, No. 15-

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55034.

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Following the Ninth Circuit’s ruling, Plaintiff moved for reconsideration and the

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Court re-reviewed the matter, coming to the same conclusion. (Doc. No. 30.) Plaintiff

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claims that Defendants admit Plaintiff properly submitted his final level grievance and,

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thus, his case is materially indistinguishable from the Ninth Circuit’s recent case in

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Andres v. Marshall, No. 15-56057 (9th Cir. April 21, 2017). But this, again, is incorrect.

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The record before the Court does not support the conclusion that Plaintiff submitted a

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proper application for third level review of his grievance, nor that Defendants admit as

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much. As such, Andres is distinguishable and summary judgment was appropriate.

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CONCLUSION
Plaintiff’s argument that Defendants admit Plaintiff properly submitted an

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application for third-level review is not supported in the record and contradicted by

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Defendants’ briefing at summary judgment. And apart for this alleged admission,

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Plaintiff offers insufficient evidence to support a finding that he exhausted his

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administrative remedies. As such, the Court finds that Plaintiff’s appeal is frivolous and

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revokes his IFP status on appeal.

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IT IS SO ORDERED.
DATED: June 27, 2017
Hon. Marilyn L. Huff
United States District Judge

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