Arellano v. Sedighi et al

Filing 89

ORDER Denying Motion for Reconsideration (Doc. No. 65 ). Signed by Judge Anthony J. Battaglia on 6/10/2020. (All non-registered users served via U.S. Mail Service t/w Docket Number 65 )(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO,

Case No.: 15-CV-2059-AJB-BGS
Plaintiff,

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ORDER DENYING MOTION TO
RECONSIDER

v.
DR. SEDIGHI, R. WALKER, Chief
Physician and Surgeon, S. ROBERTS,
M.D., Chief Medical Executive, et al.,

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Defendants.

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(Doc. No. 65)

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Presently before the Court is Plaintiff’s motion for reconsideration. (Doc. No. 65.)
As will be explained in greater detail, below the Court DENIES Plaintiff’s motion.

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BACKGROUND

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On February 27, 2018, Magistrate Judge Skomal issued a Report and

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Recommendation (“R&R”) recommending that the Court grant in part and deny in part

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Defendant Dr. Sedighi’s motion to dismiss, grant without leave to amend Defendants

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Walker, Roberts, Lewis, and Glynn’s motion to dismiss, deny Nurse Busalacchi’s motion

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to dismiss, and deny Plaintiff’s motion to disclose the name of Doe #1. (Doc. No. 43.) On

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March 20, 2018, the Court adopted Magistrate Judge Skomal’s R&R in its entirety. (Doc.
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15-CV-2059-AJB-BGS

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No. 44.) On April 2, 2018, the Court received Plaintiff’s untimely objections. (Doc. No.

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46.) On March 5, 2019, the Court overruled Plaintiff’s objections and affirmed its Order

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adopting the R&R. (Doc. No. 57.) Plaintiff was given leave to amend until April 16, 2019.

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(Id. at 11.) On April 22, 2019, the Court then granted Plaintiff an extension until April 26,

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2019 to file his Third Amended Complaint. (Doc. No. 60.) On the same day, Plaintiff filed

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a motion to reconsider. (Doc. No. 62.) The Court denied that motion. (Doc. No. 63.)

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Plaintiff then filed this instant motion to reconsider. (Doc. No. 65.) On November 25, 2019,

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Plaintiff then filed a Third Amended Complaint. (Doc. No. 70.)

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LEGAL STANDARD

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Pursuant to Federal Rule of Civil Procedure 60(b), courts may only reconsider a final

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order on certain enumerated grounds. These grounds include: (1) mistake, inadvertence,

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surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable

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diligence, could not have been discovered in time to move for a new trial; (3) fraud,

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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the

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judgment has been satisfied, released or discharged; it is based on an earlier judgment that

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has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any

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other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b)(1)–

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(6). A motion made under the first three subsections of Rule 60(b) must be brought within

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a year, but a motion made under the other subsections need only be brought within a

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“reasonable time after entry of the order sought to be set aside.” Id.; see also United States

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v. Sparks, 685 F.2d 1128, 1130 (9th Cir. 1982).

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In addition, Local Civil Rule 7.1(i)(1) states that a party may apply for

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reconsideration “[w]henever any motion or any application or petition for any order or

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other relief has been made to any judge and has been refused in whole or in part . . . .” S.D.

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Cal. CivLR 7.1. The party seeking reconsideration must show “what new or different facts

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and circumstances are claimed to exist which did not exist, or were not shown, upon such

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prior application.” Id. A court has discretion in granting or denying a motion for

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reconsideration. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003); Fuller v.
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15-CV-2059-AJB-BGS

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M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir. 2001).

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DISCUSSION

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Plaintiff subsequently filed a Third Amended Complaint where he did not name

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Defendants Roberts, Lewis, and Glynn as defendants, pursuant to the Court’s previous

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Orders. Thus, this instant motion likely could be denied as moot. However, the Court will

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address Plaintiff’s substantive arguments.

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Plaintiff again attempts to revive his Eighth Amendment claims against Defendants

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Roberts, Lewis, and Glynn. (See generally Doc. No. 65.) However, Plaintiff has still failed

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to show how Defendants Roberts, Lewis, and Glynn participated in, knew of, or reasonably

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should have known of any constitutional injury. See Farmer v. Brennan, 511 U.S. 825, 834

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(1994). Plaintiff again asserts that if the case law he provided is applied to his case it would

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reveal that he pled sufficient facts to establish an Eighth Amendment violation against

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Defendants Roberts, Lewis, and Glynn.

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However, Plaintiff only argues that Defendants Roberts, Lewis, and Glynn received

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his grievance and reviewed his medical records. (Doc. No. 65 at 2.) As the Court has

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previously explained, vague and conclusory allegations are insufficient to survive a motion

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to dismiss. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.3d 266, 268 (9th Cir.

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1982). Furthermore, a prison official’s alleged improper processing of an inmate’s

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grievance, without more, fails to serve as a basis for section 1983 liability. See generally

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners have no “separate

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constitutional entitlement to a specific prison grievance procedure”); see also Shallowhorn

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v. Molina, 572 Fed. App’x 545, 547 (9th Cir. 2014) (citing Ramirez, 334 F.3d at 860)

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(finding that the district court properly dismissed section 1983 claims against defendants

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who “were only involved in the appeals process”); Cummer v. Tilton, 465 Fed. App’x 598,

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599 (9th Cir. 2012) (same); Dragasits v. Yu, No. 16-CV-1998 BEN (JLB), 2017 WL

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3141802, at *14 (S.D. Cal. July 24, 2017) (collecting cases relying on Ramirez to hold that

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a “prison official’s mere administrative review of a prisoner’s health care appeal cannot

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serve as the basis of the official’s liability under § 1983”), adopted 2016 WL 87375772
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15-CV-2059-AJB-BGS

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(S.D. Cal. Apr. 29, 2016), aff’d sub nom. Bell v. Glynn, 696 Fed. App’x 249 (9th Cir. 2017).

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The Court has sufficiently explained several times why Plaintiff has failed to establish an

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Eighth Amendment claim against Defendants Roberts, Lewis, and Glynn.

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Additionally, Plaintiff has failed to show “what new or different facts and

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circumstances are claimed to exist which did not exist, or were not shown, upon such prior

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application.” S.D. Cal. CivLR 7.1. Plaintiff has advanced identical arguments in two

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separate motions for reconsideration. Accordingly, the Eighth Amendment claims against

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Defendants Roberts, Lewis, and Glynn remain dismissed without leave to amend.

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CONCLUSION

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Based on the foregoing, the Court DENIES Plaintiff’s motion for reconsideration.

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Plaintiff requests a copy of his instant motion as he did not have access to the law library

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in order to make a copy. The Court finds good cause exists and ORDERS that Plaintiff

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receive a copy of Docket Number 65.

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IT IS SO ORDERED.

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Dated: June 10, 2020

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15-CV-2059-AJB-BGS