Arellano v. Self et al

Filing 104

ORDER Denying Reconsideration (Doc. No. 103 ). Signed by Judge Anthony J. Battaglia on 11/18/2021. (All non-registered users served via U.S. Mail Service)(jrm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 RAUL ARELLANO, Case No.: 15-cv-02300-AJB-LL Plaintiff, ORDER DENYING RECONSIDERATION v. R. OLSON, 15 (Doc. No. 103) Defendant. 16 Presently before the Court is Plaintiff Raul Arellano’s (“Plaintiff”) motion to 17 reconsider.1 (Doc. No. 103.) For the reasons set forth below, the Court DENIES Plaintiff’s 18 motion. 19 I. BACKGROUND 20 On October 13, 2015, Plaintiff, currently incarcerated at the Richard J. Donovan 21 Correctional Facility (“RJD”) located in San Diego, California, filed a pro se civil action 22 pursuant to 42 U.S.C. § 1983, alleging constitutional violations against several defendants 23 employed at RJD. (Doc. No. 1.) Plaintiff also filed a motion to proceed In Forma Pauperis 24 25 26 27 28 1 Plaintiff filed a document with the caption “Motion: Fed. R. Civ. Proc 60(b) For case to reopen because I received the last level grievance exhaustion.” The Court thus construes Plaintiff's request as a motion to reconsider the Court’s September 23, 2019 Order adopting the Report and Recommendation, which granted Defendant’s motion for summary judgment for failure to exhaust administrative remedies and dismissed Plaintiff’s Second Amended Complaint without prejudice. (Doc. No. 82.) 1 15-cv-02300-AJB-LL 1 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc. No. 2.) On February 3, 2016, the Court 2 issued an order granting Plaintiff’s motion to proceed IFP and sua sponte dismissing the 3 entire complaint for failure to state a claim under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 4 (Doc. No. 4.) Plaintiff filed his First Amended Complaint on March 21, 2016, (Doc. No. 5 9), and on May 2, 2016, the Court sua sponte dismissed Plaintiff’s First Amended 6 Complaint for failure to state a claim (Doc. No. 10). On July 22, 2016, Plaintiff filed a 7 Second Amended Complaint (“SAC”), (Doc. No. 17), which was dismissed by the Court 8 on August 22, 2016, (Doc. No. 18). 9 On December 1, 2016, Plaintiff appealed the Court’s dismissal of his SAC to the 10 United States Court of Appeals for the Ninth Circuit. (Doc. No. 24.) On February 20, 2018, 11 the Ninth Circuit affirmed the Court’s order with the exception of Plaintiff’s retaliation 12 claim. (Doc. No. 37.) 13 Thereafter, on January 24, 2019, Defendant R. Olson filed a motion for summary 14 judgment on Plaintiff’s remaining retaliation claim. (Doc. No. 57.) On June 12, 2019, 15 Magistrate Judge Linda Lopez issued the Report and Recommendation (“R&R”), (Doc. 16 No. 68), which was adopted by the Court on September 23, 2019, (Doc. No. 82). The order 17 adopting the R&R granted Defendant’s motion for summary judgment and dismissed 18 Plaintiff’s SAC without prejudice. On November 12, 2019, the Court clarified by order that 19 Plaintiff’s SAC “is dismissed without leave to amend, and without prejudice to filing a new 20 action once administrative remedies have indeed been exhausted.” (Doc. No. 91.) 21 Subsequently, on October 18, 2019, Plaintiff appealed the Court’s order adopting the R&R 22 to the Ninth Circuit. (Doc. No. 88.) On June 3, 2021, the Ninth Circuit affirmed the Court’s 23 order. (Doc. No. 101.) The instant motion follows. 24 II. LEGAL STANDARD 25 Where the Court’s ruling has resulted in a final judgment or order, a motion for 26 reconsideration may be based upon Rule 59(e) (motion to alter or amend judgment) or Rule 27 60(b) (relief from judgment) of the Federal Rules of Civil Procedure. See School Dist. No. 28 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Absent “highly 2 15-cv-02300-AJB-LL 1 unusual circumstances,” reconsideration of a final judgment or order is appropriate only 2 where (1) the Court is presented with newly-discovered evidence, (2) the Court committed 3 “clear error or the initial decision was manifestly unjust,” or (3) there is an intervening 4 change in the controlling law. Id. at 1263. A Rule 59(e) motion may not be used to raise 5 arguments or present evidence for the first time when they could reasonably have been 6 raised earlier in the litigation. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). It 7 cannot be used to ask a court to rethink what it has already thought, merely because a party 8 disagrees with the court’s decision. Collins v. D.R. Horton, Inc., 252 F. Supp. 2d 936, 938 9 (D. Az. 2003) (citing United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Az. 1998). 10 In addition, Local Civil Rule 7.1(i)(1) states that a party may apply for 11 reconsideration “[w]henever any motion or any application or petition for any order or 12 other relief has been made to any judge and has been refused in whole or in part. . . .” The 13 party seeking reconsideration must show “what new or different facts and circumstances 14 are claimed to exist which did not exist, or were not shown, upon such prior application.” 15 Id. 16 III. DISCUSSION 17 Plaintiff requests the court to reopen his case because he allegedly exhausted his 18 administrative remedies. However, Plaintiff’s motion fails to establish any of the three 19 prongs that would entitle him to reconsideration. The Court granted Defendant’s motion 20 for summary judgment for failure to exhaust administrative remedies, and Plaintiff’s SAC 21 was dismissed without prejudice to filing a new action once administrative remedies had 22 been exhausted. Plaintiff has not set forth facts or law of a strongly convincing nature to 23 induce the court to reverse its prior decision. However, Plaintiff is reminded he can file a 24 new action if administrative remedies have indeed been exhausted. 25 /// 26 /// 27 /// 28 /// 3 15-cv-02300-AJB-LL 1 2 3 IV. CONCLUSION Accordingly, Plaintiff’s motion for reconsideration is DENIED. The Court’s previous order dismissing Plaintiff’s SAC without prejudice still stands. 4 5 6 IT IS SO ORDERED. Dated: November 17, 2021 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 15-cv-02300-AJB-LL

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