Torbert v. Gore et al

Filing 130

ORDER Denying 128 Motion for Clarification/Objection to Denial of Plaintiff's Motion to Amend. Signed by Judge Roger T. Benitez on 12/19/2016. (All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAVON LAMAR TORBERT, Case No.: 3:14-cv-02911 BEN (NLS) Plaintiff, 12 13 14 20 WILLIAM D. GORE, Sheriff of San Diego Sheriff Department; DEPUTY DAILLY, Sheriff of San Diego Sheriff Department; DEPUTY McMAHON, Sheriff of San Diego Sheriff Department; DEPUTY Y.G. GEBREBIORGIS, Sheriff of San Diego Sheriff Department; SERGEANT ESTRADA, Sheriff of San Diego Sheriff Department; COUNTY OF SAN DIEGO; and DOES 1-50, 21 ORDER DENYING MOTION FOR CLARIFICATION/OBJECTION TO DENIAL OF PLAINTIFF’S MOTION TO AMEND v. Defendants. 15 16 17 18 19 [Docket No. 128] 22 23 24 Plaintiff Javon Lamar Torbert (“Plaintiff”), a prisoner proceeding pro se and in 25 forma pauperis, filed this civil rights action on December 9, 2014. He alleges excessive 26 force, cruel and unusual punishment, and deliberate indifference claims arising from an 27 alleged incident where one of the Defendants slammed a metal door on Plaintiff’s left 28 arm. After summary judgment, only one excessive force claim against one Defendant 1 3:14-cv-02911 BEN (NLS) 1 2 remains in the case. Plaintiff sought leave to amend his complaint to add a new claim against 3 Defendants for “conspiracy to obstruct justice by committing declaration perjury under 4 oath to fraudulently conceal the existence of the surveillance camera located above the 5 isolation cell #4 for the incident of October 2, 2014.” (Docket No. 113 at 1.) The motion 6 for leave to amend was the fourth iteration of Plaintiff’s request to sanction the 7 Defendants for allegedly concealing the existence of a security camera that he claims 8 recorded acts related to the October 2, 2014 incident. On October 26, 2016, this Court 9 denied Plaintiff’s motion because an amended complaint would be futile and would 10 11 prejudice Defendants. (Docket No. 117.) Now before the Court is Plaintiff’s “Clarification/Objection to Denial of Plaintiff’s 12 Motion to Amend Obstruction of Justice.” (Docket No. 128.) The Court construes this 13 filing as a motion for reconsideration. This is the fifth iteration of Plaintiff’s request for 14 the alleged video footage. 15 For the following reasons, the Court DENIES the motion for reconsideration. 16 BACKGROUND 17 The Court’s prior order denying Plaintiff’s motion for leave to amend detailed the 18 history of litigation on Plaintiff’s request for the alleged video footage. In short, Plaintiff 19 claims that video footage from inside his medical isolation cell exists. Defendants have 20 explained that there is no footage from inside the cell, but produced footage from the 21 hallway outside the cell. The Court found no good cause to disbelieve Defendants’ 22 account that there is no recording of events inside the cell. 23 24 25 26 27 28 In ruling on Plaintiff’s motion for leave to amend, the Court found that good cause did not exist to grant Plaintiff’s motion: First, Defendants would be prejudiced now–long after discovery closed and after they largely prevailed on summary judgment–if Torbert is allowed to file an amended complaint that includes a completely new factual basis for relief. Second, the filing of an amended complaint would be futile because even if video footage exists from inside the medical isolation cell, Torbert 2 3:14-cv-02911 BEN (NLS) 1 still cannot prevail on his deliberate indifference claim. The Court already accepted as true the facts that Torbert alleges are evident in the alleged video footage, which include Torbert not receiving medical attention for 13 hours and only receiving his regularly-scheduled psychiatric medication and three Tylenols for pain. Even assuming these facts were true, this Court still found no deliberate indifference because “[n]o objective medical evidence shows that either an immediate visit to a doctor was necessary, or that referral to a neurologist was warranted” during that 13 hour period. See R&R, pp.16-17. In sum, the amended complaint and purported missing discovery would add nothing to Torbert’s constitutional claims. 2 3 4 5 6 7 8 (Docket No. 117 at 5.) 9 Plaintiff now moves for reconsideration of this order. 10 11 DISCUSSION I. 12 LEGAL STANDARD Under Rule 60(b), a court may relieve a party from a final judgment, order, or 13 proceeding upon a showing of mistake, newly discovered evidence, fraud, or “any other 14 reason that justifies relief.” Fed. R. Civ. P. 60(b); see Latshaw v. Trainer Wortham & 15 Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (explaining that the catch-all provision should 16 be used sparingly as an equitable remedy to prevent manifest injustice). 17 Motions for reconsideration “should not be granted, absent highly unusual 18 circumstances.” Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660-J, 2007 WL 19 2456223, at *2 (S.D. Cal. Aug. 23, 2007). “A motion for reconsideration may not be 20 used to raise arguments or present evidence for the first time when they could reasonably 21 have been raised earlier in the litigation.” Life Techs. Corp. v. Illumina, Inc., No. 11-cv- 22 00703, 2012 WL 10933209, at *1 (S.D. Cal. June 11, 2012) (quoting Kona Enters., Inc. 23 v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Moreover, motions to reconsider 24 are not a platform to relitigate arguments and facts previously considered and rejected. 25 See Harrison v. Sofamor/Danek Grp., Inc., No. 94-cv-0692, 1998 WL 1166044, at *3 26 (S.D. Cal. Sept. 15, 1998). 27 /// 28 /// 3 3:14-cv-02911 BEN (NLS) 1 II. WHETHER TO GRANT RECONSIDERATION 2 It appears that Plaintiff claims that the Court made a mistake in its prior 3 ruling. He “asks the Court to review all evidence and allow Plaintiff to file [a] 4 motion to allow a look thru [sic] the isolation hallway cell #4 for the requested 5 camera, and obstruction on defendants under penalty of perjury.” (Docket No. 128 6 at 4.) None of Plaintiff’s arguments are persuasive. 7 Plaintiff first argues that he never requested video footage from a camera 8 inside the cell, and that he always sought footage from a camera placed directly 9 outside his cell that monitored events inside the cell. Plaintiff misreads the Court’s 10 orders. The Court’s orders are clear that Plaintiff sought footage from a camera 11 outside the cell that recorded activities inside it. The Court did not make a mistake 12 about the location of the camera. 13 He also contends that the produced video footage shows another hallway 14 camera closer to the incident, and that Defendants never produced footage from his 15 closer camera. The Court has re-reviewed the produced footage and fails to find 16 other cameras in the hallway. 17 Plaintiff’s motion seeks to relitigate issues that have been considered and 18 rejected several times. This is not proper grounds for a motion for reconsideration. 19 The Court readopts its prior conclusion that allowing Plaintiff’s requested relief 20 would prejudice Defendants and be futile. 21 CONCLUSION 22 The Court DENIES Plaintiff’s motion for reconsideration. 23 IT IS SO ORDERED. 24 25 Dated: December 19, 2016 26 27 28 4 3:14-cv-02911 BEN (NLS)

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