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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv1170-MMA (DHB)

SCOTT F. FIALHO,
Plaintiff,

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v.

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ORDER DENYING DEFENDANT’S
MOTION FOR
RECONSIDERATION

G. HERRERA, et al.,

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Defendant.

[Doc. No. 28]

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Plaintiff Scott Fialho, a state prisoner proceeding pro se, brings this civil rights

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action pursuant to 42 U.S.C. § 1983. See Doc. No. 1. Defendant G. Herrera previously

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moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing

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that Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit, as

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required by the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). See

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Doc. No. 20. The Court denied Defendant’s motion. See Doc. No. 26. Defendant moves

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for reconsideration. See Doc. No. 28. Defendant argues that the Court erred in applying

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the Ninth Circuit’s holding in Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005), to find that

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Defendant failed to meet her burden to show that Plaintiff did not fully exhaust his

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administrative remedies. To date, Plaintiff has not filed an opposition to Defendant’s

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motion. For the reasons set forth below, the Court DENIES Defendant’s motion.
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16cv1170-MMA (DHB)

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DISCUSSION

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1. Legal Standard

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Pursuant to Federal Rule of Civil Procedure 59(e), district courts have the power

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to reconsider a previous ruling or entry of judgment. Fed. R. Civ. P. 59(e). A motion

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under Rule 59(e) seeks “a substantive change of mind by the court.” Tripati v. Henman,

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845 F.2d 205, 205 (9th Cir. 1988). Rule 59(e) is an extraordinary remedy and, in the

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interest of finality and conservation of judicial resources, should not be granted absent

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highly unusual circumstances. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003);

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McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59 may not be used to

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re-litigate old matters, raise new arguments, or present evidence that could have been

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raised prior to entry of the judgment. Exxon Shipping Co. v. Baker, 544 U.S. 471, 486-87

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(2008).

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Under Rule 59(e), it is appropriate to alter or amend a previous ruling if “(1) the

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district court is presented with newly discovered evidence, (2) the district court

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committed clear error or made an initial decision that was manifestly unjust, or (3) there

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is an intervening change in controlling law.” United Nat. Ins. Co. v. Spectrum

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Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). To carry the burden of proof, a

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moving party seeking reconsideration must show more than a disagreement with the

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Court’s decision or a recapitulation of the cases and arguments previously considered by

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the court. See United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D.

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Cal. 2001).

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2. Analysis

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The Court previously found that Defendant Herrera did not met her burden of

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proving that Plaintiff failed to exhaust his available administrative remedies prior to filing

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this lawsuit. Defendant now argues that because Plaintiff “did not raise the issue of

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available remedies, there was no reason for Defendant to have addressed the issue in

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reply.” Doc. No. 28 at 2. However, it is well-settled in this circuit that the “failure to

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exhaust administrative remedies is an affirmative defense that the defendant must plead
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16cv1170-MMA (DHB)

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and prove in a PLRA case.” Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014)

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(emphasis added). This includes demonstrating “that there was an available

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administrative remedy, and that the prisoner did not exhaust that available remedy.” Id.

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at 1172. Therefore, Defendant should have addressed the availability of remedies in her

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moving papers. She did not, and a motion for reconsideration “is not a vehicle for . . .

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taking a ‘second bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d

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Cir. 1998).

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Defendant further contends that the Court erred in relying upon the Ninth Circuit’s

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decision in Brown v. Valoff, supra, to reach its conclusion in this case. Defendant asserts

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that the Court instead should have relied upon the district court’s ruling in Cunningham v.

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Ramos, 2011 U.S. Dist. LEXIS 85997 (N.D. Cal. Aug. 3, 2011), to find that Plaintiff did

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not exhaust his available remedies. Defendant’s argument is unavailing. The Ninth

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Circuit’s statement of the law in Brown is controlling, whereas an unpublished district

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court decision applying that law is, at best, instructive. Moreover, the district court’s

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reasoning in Cunningham has been rejected explicitly by several courts. See Willard v.

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Sebok, 2016 U.S. Dist. LEXIS 58180, at *17 (C.D. Cal. Mar. 18, 2016) (citing Branch v.

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Umphenour, 2015 U.S. Dist. LEXIS 118633 (E.D. Cal. Sep. 4, 2015) and Graham v.

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Runnels, 2012 U.S. Dist. LEXIS 103249 (S.D. Cal. July 24, 2012)).

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Finally, Defendant submits the declaration of R. Robinson, the Chief of the Inmate

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Correspondence and Appeals Branch, as evidence of the remedies which remained

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available to Plaintiff and required further exhaustion. However, this evidence should

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have been submitted in support of Defendant’s motion in the first instance, and does not

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provide grounds for reconsideration at this juncture. See Kona Enters., Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (holding that a motion for reconsideration

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“may not be used to raise arguments or present evidence for the first time when they

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could reasonably have been raised earlier in the litigation.”).

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16cv1170-MMA (DHB)

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CONCLUSION
Having reviewed its previous ruling, the Court is satisfied that it committed no

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error. Plaintiff has not provided any newly discovered evidence. Additionally, there has

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been no intervening change in controlling law. Accordingly, the Court DENIES

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Defendant’s motion for reconsideration.

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IT IS SO ORDERED.
DATE: July 3, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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16cv1170-MMA (DHB)