Torbert v. Gore et al

Filing 147

ORDER: (1) Denying Plaintiff's 136 Motion to Preserve a Claim of Error; (2) Denying Plaintiff's 138 Motion for Relief of Judgment; (3) Granting in Part Plaintiff's 140 Motion for Extension of Time; (4) Granting Defendant's 131 Motion for Reconsideration. Signed by Judge Roger T. Benitez on 2/4/2017. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAVON LAMAR TORBERT,

Case No.: 3:14-cv-02911-BEN (NLS)
Plaintiff,

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v.

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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,

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ORDER:

Defendants.

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(1) DENYING PLAINTIFF’S
MOTION TO PRESERVE A CLAIM
OF ERROR;
(2) DENYING PLAINTIFF’S
MOTION FOR RELIEF OF
JUDGMENT;
(3) GRANTING IN PART
PLAINTIFF’S MOTION FOR
EXTENSION OF TIME;
(4) GRANTING DEFENDANT’S
MOTION FOR
RECONSIDERATION

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Plaintiff Javon Lamar Torbert (“Plaintiff”), a prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action on December 9, 2014. He alleges excessive

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force, cruel and unusual punishment, and deliberate indifference claims arising from an

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alleged incident where one of the Defendants slammed a metal door on Plaintiff’s left
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3:14-cv-02911-BEN (NLS)

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arm. After summary judgment, only one excessive force claim against one Defendant

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remains in the case. Now before the Court are four motions, three filed by Plaintiff and

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one by Defendant Dailly. The Court considers each in turn.

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I.

Plaintiff’s Motions

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Plaintiff has filed three motions: (1) motion to preserve a claim of error; (2)

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motion for relief of judgment; and (3) motion for change of address and extension of time

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for the pretrial conference and pretrial deadlines.

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A. Motion to Preserve a Claim of Error

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Plaintiff moves under Federal Rule of Evidence 103 to “preserve any errors

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pertaining to his claim of video surveillance on top of the cell door #4 of the medical

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isolation that was used in the incident and the errors pointed out in his opposition to

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defendant’s summary judgment.” (ECF No. 136). “The errors claimed by the plaintiff

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has [sic] affected his motions for discovery and opposition to defendant’s summary

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judgment.” (Id.) He asks the Court “to take judicial notice on all his motions of error

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and relieve of judgements [sic].” (Id.)

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This motion relates to Plaintiff’s repeated request to sanction Defendants for

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allegedly concealing the existence of a security camera that he claims recorded acts on

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October 2, 2014 that are at issue in this lawsuit. Plaintiff sought this alleged video

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footage during discovery, but Defendants responded that the footage Plaintiff sought does

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not exist. The Court found that there was no good cause to disbelieve Defendants’

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statement and denied several discovery motions for the footage. Later, Plaintiff sought to

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add a new claim against Defendants for “conspiracy to obstruct justice by committing

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declaration perjury under oath to fraudulently conceal the existence of the surveillance

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camera located above the isolation cell #4 for the incident of October 2, 2014.” (Mot. to

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Amend at 1, ECF No. 113). On October 26, 2016, this Court denied Plaintiff’s motion to

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amend. (Order, ECF No. 117). Plaintiff then moved for reconsideration of that order,

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which this Court denied on December 19, 2016, finding that Plaintiff’s motion sought to

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relitigate issues that have been considered and rejected several times. (Order, ECF No.
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130). The Court adopted its prior conclusion that allowing Plaintiff’s requested relief

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would prejudice Defendants and be futile. (Id.)

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Plaintiff’s motion to preserve a claim of error is DENIED. This is the sixth

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iteration of Plaintiff’s request to sanction Defendants for allegedly concealing the

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footage. Plaintiff has made his record.

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B. Motion for Relief of Judgment

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Plaintiff moves under Federal Rule of Civil Procedure 60(b) for relief from an

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order granting in part and denying in part Plaintiff’s motion to compel (ECF No. 69) and

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from the report and recommendation granting in part and denying in part Defendants’

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motion for summary judgment, and the order adopting the report and recommendation.

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(ECF Nos. 100, 109). He again contends that the video footage exists and that the Court

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misinterpreted his request. He also argues that the Court stated incorrect facts in the

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report and recommendation.

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Under Rule 60(b), a court may relieve a party from a final judgment, order, or

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proceeding upon a showing of mistake, newly discovered evidence, fraud, or “any other

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reason that justifies relief.” Fed. R. Civ. P. 60(b); see Latshaw v. Trainer Wortham &

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Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (explaining that the catch-all provision should

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be used sparingly as an equitable remedy to prevent manifest injustice). Motions for

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reconsideration “should not be granted, absent highly unusual circumstances.”

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Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660-J, 2007 WL 2456223, at *2

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(S.D. Cal. Aug. 23, 2007). “A motion for reconsideration may not be used to raise

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arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Life Techs. Corp. v. Illumina, Inc., No. 11-cv-00703,

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2012 WL 10933209, at *1 (S.D. Cal. June 11, 2012) (quoting Kona Enters., Inc. v. Estate

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of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Moreover, motions to reconsider are not a

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platform to relitigate arguments and facts previously considered and rejected. See

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Harrison v. Sofamor/Danek Grp., Inc., No. 94-cv-0692, 1998 WL 1166044, at *3 (S.D.

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Cal. Sept. 15, 1998).
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Plaintiff’s motion for relief of judgment is DENIED. As to the existence of the

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video footage, this motion is Plaintiff’s seventh attempt to litigate that issue. He has not

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stated proper grounds for a motion for reconsideration. Harrison, No. 94-cv-0692, at *3.

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With respect to the allegedly incorrect facts found by the Court in the report and

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recommendation, Plaintiff’s motion relates to facts about the October 2 incident. For

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instance, he challenges the Court’s explanation of why he was taken to the hospital and

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the misquoting of a medical chart.
The Court did not dismiss Plaintiff’s excessive force claim against Defendant

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Dailly for the October 2 incident. This claim remains, and Plaintiff can present his

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version of the facts to the jury, should this case go that far. Thus, even if the Court

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misstated certain facts—which this Court does not find—Plaintiff suffered no prejudice.

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To the extent Plaintiff challenges the dismissal of his deliberate indifference claim

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concerning the October 2 incident, none of Plaintiff’s complaints of incorrect facts are

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relevant to that dismissal. The report and recommendation and the order adopting the

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report and recommendation found that there was no genuine dispute whether Plaintiff

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suffered a serious medical need. He did not make an objective showing that he had such

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a need: “Plaintiff was injured in the evening and received pain medicine shortly after the

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injury. He was seen by medical staff the next morning and had numerous medical

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appointments to follow up on his injury. None of the medical exams revealed a lasting

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injury, and no doctor believed a neurology referral was necessary.” (Order at 3, ECF No.

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109). None of the facts that Plaintiff contends the Court stated incorrectly would disturb

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this analysis and the conclusion that he did not establish a serious medical need.

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Plaintiff also challenges the grant of summary judgment for Defendant on his

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claim for failure to return his cane. However, Plaintiff’s motion for relief does not state

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any grounds for reconsidering this conclusion. Plaintiff appears to restate the arguments

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he presented at summary judgment, which this Court rejected. As noted, courts deny

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motions for reconsideration based on arguments previously litigated and rejected.

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C. Motion for Change of Address and Extension of Time

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Plaintiff has been transferred to a new institution and asks the Court to change his

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address. This request is GRANTED. The Clerk shall change Plaintiff’s address to:

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Javon Lamar Torbert #P-96193
D-3-129
P.O. Box 4670
Lancaster, CA 93539

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He also asks to continue the pretrial conference and pretrial deadlines by 60 days

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because he does not have his property as a result of his transfer. He needs to receive his

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property and “catch up” with anything he missed in the litigation. Defendant Dailly filed

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a notice of non-opposition to Plaintiff’s request.
The Court will GRANT Plaintiff’s motion IN PART. Plaintiff stated that he was

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transferred on December 28, 2016. Other than Plaintiff’s motion for an extension,

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nothing has been filed that requires Plaintiff’s response. The pretrial deadlines have

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already been extended once by 90 days, and that schedule has been set since October 28,

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2016. (ECF No. 122). To allow Plaintiff time to locate his property, the Court will

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extend the deadlines by 28 days. The pretrial deadlines will be as follows:

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Current Date

New Date

Event

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January 30, 2017

February 27, 2017

Pretrial Disclosure Requirements

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February 6, 2017

March 6, 2017

Meet/Confer (Local Rule 16.1(f)(4))

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February 13, 2017

March 13, 2017

Proposed Pretrial Order

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February 20, 2017

March 20, 2017

Pretrial Disclosures served and lodged

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February 27, 2017

March 28, 2017
at 10:30 am

Pretrial Conference

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II.

Defendant’s Motion for Reconsideration

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Defendant Dailly moves for reconsideration of the portion of the Court’s order

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granting Plaintiff’s motion to amend his complaint to withdraw his demand for a jury

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trial. (ECF No. 131). When Plaintiff filed his complaint, he demanded a jury trial.

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(Compl. at 7, ECF No. 1). On September 27, 2016, he moved to amend his complaint to
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reduce his request for punitive and compensatory damages and change his request for a

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jury trial to a bench trial. (ECF No. 106). Nine days later, on October 5, 2016, the Court

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granted Plaintiff’s request in the same order adopting the Magistrate Judge’s report and

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recommendation on Defendants’ motion for summary judgment. (ECF No. 109). The

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Court issued that order before Defendant was required to respond to Plaintiff’s motion to

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amend.

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Defendant’s motion for reconsideration is GRANTED. Once Plaintiff demanded a

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jury trial, Defendant Dailly was entitled to rely on that demand and did not need to file

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his own demand. Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir. 1995). “A

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proper demand may be withdrawn only if the parties consent.” Fed. R. Civ. P. 38(d).

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Defendant has not consented to a nonjury trial, and the Court has not found that there is

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no federal right to a jury trial on the issues remaining. Fed. R. Civ. P. 39(a). Therefore,

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the Court’s order was legally erroneous, and it would be unjust to make Defendant Dailly

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proceed in a bench trial. The Court thus vacates its prior grant of Plaintiff’s motion and

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denies his request for a bench trial.

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CONCLUSION

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As discussed above, the Court hereby ORDERS:

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Plaintiff’s motion to preserve a claim of error is DENIED. (ECF No. 136).

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Plaintiff’s motion for relief of judgment is DENIED. (ECF No. 138).

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Plaintiff’s motion for change of address and extension of time is GRANTED IN

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PART. The Clerk shall update Plaintiff’s address. The Court will extend the pretrial

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deadlines consistent with the schedule outlined above. (ECF No. 140).

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Defendant’s motion for reconsideration is GRANTED. (ECF No. 131).

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IT IS SO ORDERED.

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Dated: February 4, 2017

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