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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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 v. 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: Defendants. 15 16 17 18 19 (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 22 23 24 25 Plaintiff Javon Lamar Torbert (“Plaintiff”), a prisoner proceeding pro se and in 26 forma pauperis, filed this civil rights action on December 9, 2014. He alleges excessive 27 force, cruel and unusual punishment, and deliberate indifference claims arising from an 28 alleged incident where one of the Defendants slammed a metal door on Plaintiff’s left 1 3:14-cv-02911-BEN (NLS) 1 arm. After summary judgment, only one excessive force claim against one Defendant 2 remains in the case. Now before the Court are four motions, three filed by Plaintiff and 3 one by Defendant Dailly. The Court considers each in turn. 4 I. Plaintiff’s Motions 5 Plaintiff has filed three motions: (1) motion to preserve a claim of error; (2) 6 motion for relief of judgment; and (3) motion for change of address and extension of time 7 for the pretrial conference and pretrial deadlines. 8 A. Motion to Preserve a Claim of Error 9 Plaintiff moves under Federal Rule of Evidence 103 to “preserve any errors 10 pertaining to his claim of video surveillance on top of the cell door #4 of the medical 11 isolation that was used in the incident and the errors pointed out in his opposition to 12 defendant’s summary judgment.” (ECF No. 136). “The errors claimed by the plaintiff 13 has [sic] affected his motions for discovery and opposition to defendant’s summary 14 judgment.” (Id.) He asks the Court “to take judicial notice on all his motions of error 15 and relieve of judgements [sic].” (Id.) 16 This motion relates to Plaintiff’s repeated request to sanction Defendants for 17 allegedly concealing the existence of a security camera that he claims recorded acts on 18 October 2, 2014 that are at issue in this lawsuit. Plaintiff sought this alleged video 19 footage during discovery, but Defendants responded that the footage Plaintiff sought does 20 not exist. The Court found that there was no good cause to disbelieve Defendants’ 21 statement and denied several discovery motions for the footage. Later, Plaintiff sought to 22 add a new claim against Defendants for “conspiracy to obstruct justice by committing 23 declaration perjury under oath to fraudulently conceal the existence of the surveillance 24 camera located above the isolation cell #4 for the incident of October 2, 2014.” (Mot. to 25 Amend at 1, ECF No. 113). On October 26, 2016, this Court denied Plaintiff’s motion to 26 amend. (Order, ECF No. 117). Plaintiff then moved for reconsideration of that order, 27 which this Court denied on December 19, 2016, finding that Plaintiff’s motion sought to 28 relitigate issues that have been considered and rejected several times. (Order, ECF No. 2 3:14-cv-02911-BEN (NLS) 1 130). The Court adopted its prior conclusion that allowing Plaintiff’s requested relief 2 would prejudice Defendants and be futile. (Id.) 3 Plaintiff’s motion to preserve a claim of error is DENIED. This is the sixth 4 iteration of Plaintiff’s request to sanction Defendants for allegedly concealing the 5 footage. Plaintiff has made his record. 6 B. Motion for Relief of Judgment 7 Plaintiff moves under Federal Rule of Civil Procedure 60(b) for relief from an 8 order granting in part and denying in part Plaintiff’s motion to compel (ECF No. 69) and 9 from the report and recommendation granting in part and denying in part Defendants’ 10 motion for summary judgment, and the order adopting the report and recommendation. 11 (ECF Nos. 100, 109). He again contends that the video footage exists and that the Court 12 misinterpreted his request. He also argues that the Court stated incorrect facts in the 13 report and recommendation. 14 Under Rule 60(b), a court may relieve a party from a final judgment, order, or 15 proceeding upon a showing of mistake, newly discovered evidence, fraud, or “any other 16 reason that justifies relief.” Fed. R. Civ. P. 60(b); see Latshaw v. Trainer Wortham & 17 Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (explaining that the catch-all provision should 18 be used sparingly as an equitable remedy to prevent manifest injustice). Motions for 19 reconsideration “should not be granted, absent highly unusual circumstances.” 20 Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660-J, 2007 WL 2456223, at *2 21 (S.D. Cal. Aug. 23, 2007). “A motion for reconsideration may not be used to raise 22 arguments or present evidence for the first time when they could reasonably have been 23 raised earlier in the litigation.” Life Techs. Corp. v. Illumina, Inc., No. 11-cv-00703, 24 2012 WL 10933209, at *1 (S.D. Cal. June 11, 2012) (quoting Kona Enters., Inc. v. Estate 25 of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Moreover, motions to reconsider are not a 26 platform to relitigate arguments and facts previously considered and rejected. See 27 Harrison v. Sofamor/Danek Grp., Inc., No. 94-cv-0692, 1998 WL 1166044, at *3 (S.D. 28 Cal. Sept. 15, 1998). 3 3:14-cv-02911-BEN (NLS) Plaintiff’s motion for relief of judgment is DENIED. As to the existence of the 1 2 video footage, this motion is Plaintiff’s seventh attempt to litigate that issue. He has not 3 stated proper grounds for a motion for reconsideration. Harrison, No. 94-cv-0692, at *3. 4 With respect to the allegedly incorrect facts found by the Court in the report and 5 recommendation, Plaintiff’s motion relates to facts about the October 2 incident. For 6 instance, he challenges the Court’s explanation of why he was taken to the hospital and 7 the misquoting of a medical chart. The Court did not dismiss Plaintiff’s excessive force claim against Defendant 8 9 Dailly for the October 2 incident. This claim remains, and Plaintiff can present his 10 version of the facts to the jury, should this case go that far. Thus, even if the Court 11 misstated certain facts—which this Court does not find—Plaintiff suffered no prejudice. 12 To the extent Plaintiff challenges the dismissal of his deliberate indifference claim 13 concerning the October 2 incident, none of Plaintiff’s complaints of incorrect facts are 14 relevant to that dismissal. The report and recommendation and the order adopting the 15 report and recommendation found that there was no genuine dispute whether Plaintiff 16 suffered a serious medical need. He did not make an objective showing that he had such 17 a need: “Plaintiff was injured in the evening and received pain medicine shortly after the 18 injury. He was seen by medical staff the next morning and had numerous medical 19 appointments to follow up on his injury. None of the medical exams revealed a lasting 20 injury, and no doctor believed a neurology referral was necessary.” (Order at 3, ECF No. 21 109). None of the facts that Plaintiff contends the Court stated incorrectly would disturb 22 this analysis and the conclusion that he did not establish a serious medical need. 23 Plaintiff also challenges the grant of summary judgment for Defendant on his 24 claim for failure to return his cane. However, Plaintiff’s motion for relief does not state 25 any grounds for reconsidering this conclusion. Plaintiff appears to restate the arguments 26 he presented at summary judgment, which this Court rejected. As noted, courts deny 27 motions for reconsideration based on arguments previously litigated and rejected. 28 /// 4 3:14-cv-02911-BEN (NLS) 1 C. Motion for Change of Address and Extension of Time 2 Plaintiff has been transferred to a new institution and asks the Court to change his 3 address. This request is GRANTED. The Clerk shall change Plaintiff’s address to: 4 6 Javon Lamar Torbert #P-96193 D-3-129 P.O. Box 4670 Lancaster, CA 93539 7 He also asks to continue the pretrial conference and pretrial deadlines by 60 days 8 because he does not have his property as a result of his transfer. He needs to receive his 9 property and “catch up” with anything he missed in the litigation. Defendant Dailly filed 5 10 a notice of non-opposition to Plaintiff’s request. The Court will GRANT Plaintiff’s motion IN PART. Plaintiff stated that he was 11 12 transferred on December 28, 2016. Other than Plaintiff’s motion for an extension, 13 nothing has been filed that requires Plaintiff’s response. The pretrial deadlines have 14 already been extended once by 90 days, and that schedule has been set since October 28, 15 2016. (ECF No. 122). To allow Plaintiff time to locate his property, the Court will 16 extend the deadlines by 28 days. The pretrial deadlines will be as follows: 17 Current Date New Date Event 18 January 30, 2017 February 27, 2017 Pretrial Disclosure Requirements 19 February 6, 2017 March 6, 2017 Meet/Confer (Local Rule 16.1(f)(4)) 20 February 13, 2017 March 13, 2017 Proposed Pretrial Order 21 February 20, 2017 March 20, 2017 Pretrial Disclosures served and lodged 22 February 27, 2017 March 28, 2017 at 10:30 am Pretrial Conference 23 24 II. Defendant’s Motion for Reconsideration 25 Defendant Dailly moves for reconsideration of the portion of the Court’s order 26 granting Plaintiff’s motion to amend his complaint to withdraw his demand for a jury 27 trial. (ECF No. 131). When Plaintiff filed his complaint, he demanded a jury trial. 28 (Compl. at 7, ECF No. 1). On September 27, 2016, he moved to amend his complaint to 5 3:14-cv-02911-BEN (NLS) 1 reduce his request for punitive and compensatory damages and change his request for a 2 jury trial to a bench trial. (ECF No. 106). Nine days later, on October 5, 2016, the Court 3 granted Plaintiff’s request in the same order adopting the Magistrate Judge’s report and 4 recommendation on Defendants’ motion for summary judgment. (ECF No. 109). The 5 Court issued that order before Defendant was required to respond to Plaintiff’s motion to 6 amend. 7 Defendant’s motion for reconsideration is GRANTED. Once Plaintiff demanded a 8 jury trial, Defendant Dailly was entitled to rely on that demand and did not need to file 9 his own demand. Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir. 1995). “A 10 proper demand may be withdrawn only if the parties consent.” Fed. R. Civ. P. 38(d). 11 Defendant has not consented to a nonjury trial, and the Court has not found that there is 12 no federal right to a jury trial on the issues remaining. Fed. R. Civ. P. 39(a). Therefore, 13 the Court’s order was legally erroneous, and it would be unjust to make Defendant Dailly 14 proceed in a bench trial. The Court thus vacates its prior grant of Plaintiff’s motion and 15 denies his request for a bench trial. 16 CONCLUSION 17 As discussed above, the Court hereby ORDERS: 18 Plaintiff’s motion to preserve a claim of error is DENIED. (ECF No. 136). 19 Plaintiff’s motion for relief of judgment is DENIED. (ECF No. 138). 20 Plaintiff’s motion for change of address and extension of time is GRANTED IN 21 PART. The Clerk shall update Plaintiff’s address. The Court will extend the pretrial 22 deadlines consistent with the schedule outlined above. (ECF No. 140). 23 Defendant’s motion for reconsideration is GRANTED. (ECF No. 131). 24 IT IS SO ORDERED. 25 Dated: February 4, 2017 26 27 28 6 3:14-cv-02911-BEN (NLS)

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