Fialho v. Herrera et al

Filing 31

ORDER Denying 28 Motion for Reconsideration. Signed by Judge Michael M. Anello on 7/3/2017. (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 Case No.: 16cv1170-MMA (DHB) SCOTT F. FIALHO, Plaintiff, 12 13 v. 14 ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION G. HERRERA, et al., 15 Defendant. [Doc. No. 28] 16 17 18 Plaintiff Scott Fialho, a state prisoner proceeding pro se, brings this civil rights 19 action pursuant to 42 U.S.C. § 1983. See Doc. No. 1. Defendant G. Herrera previously 20 moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing 21 that Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit, as 22 required by the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). See 23 Doc. No. 20. The Court denied Defendant’s motion. See Doc. No. 26. Defendant moves 24 for reconsideration. See Doc. No. 28. Defendant argues that the Court erred in applying 25 the Ninth Circuit’s holding in Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005), to find that 26 Defendant failed to meet her burden to show that Plaintiff did not fully exhaust his 27 administrative remedies. To date, Plaintiff has not filed an opposition to Defendant’s 28 motion. For the reasons set forth below, the Court DENIES Defendant’s motion. 1 16cv1170-MMA (DHB) 1 DISCUSSION 2 1. Legal Standard 3 Pursuant to Federal Rule of Civil Procedure 59(e), district courts have the power 4 to reconsider a previous ruling or entry of judgment. Fed. R. Civ. P. 59(e). A motion 5 under Rule 59(e) seeks “a substantive change of mind by the court.” Tripati v. Henman, 6 845 F.2d 205, 205 (9th Cir. 1988). Rule 59(e) is an extraordinary remedy and, in the 7 interest of finality and conservation of judicial resources, should not be granted absent 8 highly unusual circumstances. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); 9 McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59 may not be used to 10 re-litigate old matters, raise new arguments, or present evidence that could have been 11 raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 544 U.S. 471, 486-87 12 (2008). 13 Under Rule 59(e), it is appropriate to alter or amend a previous ruling if “(1) the 14 district court is presented with newly discovered evidence, (2) the district court 15 committed clear error or made an initial decision that was manifestly unjust, or (3) there 16 is an intervening change in controlling law.” United Nat. Ins. Co. v. Spectrum 17 Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). To carry the burden of proof, a 18 moving party seeking reconsideration must show more than a disagreement with the 19 Court’s decision or a recapitulation of the cases and arguments previously considered by 20 the court. See United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. 21 Cal. 2001). 22 2. Analysis 23 The Court previously found that Defendant Herrera did not met her burden of 24 proving that Plaintiff failed to exhaust his available administrative remedies prior to filing 25 this lawsuit. Defendant now argues that because Plaintiff “did not raise the issue of 26 available remedies, there was no reason for Defendant to have addressed the issue in 27 reply.” Doc. No. 28 at 2. However, it is well-settled in this circuit that the “failure to 28 exhaust administrative remedies is an affirmative defense that the defendant must plead 2 16cv1170-MMA (DHB) 1 and prove in a PLRA case.” Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014) 2 (emphasis added). This includes demonstrating “that there was an available 3 administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. 4 at 1172. Therefore, Defendant should have addressed the availability of remedies in her 5 moving papers. She did not, and a motion for reconsideration “is not a vehicle for . . . 6 taking a ‘second bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d 7 Cir. 1998). 8 Defendant further contends that the Court erred in relying upon the Ninth Circuit’s 9 decision in Brown v. Valoff, supra, to reach its conclusion in this case. Defendant asserts 10 that the Court instead should have relied upon the district court’s ruling in Cunningham v. 11 Ramos, 2011 U.S. Dist. LEXIS 85997 (N.D. Cal. Aug. 3, 2011), to find that Plaintiff did 12 not exhaust his available remedies. Defendant’s argument is unavailing. The Ninth 13 Circuit’s statement of the law in Brown is controlling, whereas an unpublished district 14 court decision applying that law is, at best, instructive. Moreover, the district court’s 15 reasoning in Cunningham has been rejected explicitly by several courts. See Willard v. 16 Sebok, 2016 U.S. Dist. LEXIS 58180, at *17 (C.D. Cal. Mar. 18, 2016) (citing Branch v. 17 Umphenour, 2015 U.S. Dist. LEXIS 118633 (E.D. Cal. Sep. 4, 2015) and Graham v. 18 Runnels, 2012 U.S. Dist. LEXIS 103249 (S.D. Cal. July 24, 2012)). 19 Finally, Defendant submits the declaration of R. Robinson, the Chief of the Inmate 20 Correspondence and Appeals Branch, as evidence of the remedies which remained 21 available to Plaintiff and required further exhaustion. However, this evidence should 22 have been submitted in support of Defendant’s motion in the first instance, and does not 23 provide grounds for reconsideration at this juncture. See Kona Enters., Inc. v. Estate of 24 Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (holding that a motion for reconsideration 25 “may not be used to raise arguments or present evidence for the first time when they 26 could reasonably have been raised earlier in the litigation.”). 27 /// 28 /// 3 16cv1170-MMA (DHB) 1 2 CONCLUSION Having reviewed its previous ruling, the Court is satisfied that it committed no 3 error. Plaintiff has not provided any newly discovered evidence. Additionally, there has 4 been no intervening change in controlling law. Accordingly, the Court DENIES 5 Defendant’s motion for reconsideration. 6 7 8 IT IS SO ORDERED. DATE: July 3, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 16cv1170-MMA (DHB)

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