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)

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)