Allen JR., II v. Beard et al

Filing 49

ORDER denying 40 Plaintiff's Motion for Reconsideration. Signed by Judge Michael M. Anello on 11/29/2017. (All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 16cv2713-MMA (KSC)

COLUMBUS ALLEN, JR.,
Plaintiff,

12
13

v.

14

ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

JEFFREY BEARD, et al.,

15

Defendants.

[Doc. No. 40]

16
17
18

Plaintiff Columbus Allen, Jr., a California state prisoner proceeding pro se, brings

19

this civil rights action pursuant to 42 U.S.C. § 1983, alleging various violations of his

20

Eighth Amendment right to adequate medical care by more than a dozen individual

21

defendants. See Doc. No. 1. Defendants J. Clark Kelso, M. Ayala, J. Dogonyaro, K.

22

Reilly, P. Nava, K. Allen, G. Hernandez, M. Voong, B. Paul, G. Chavarria, W.

23

Montgomery, E. Estock, C. Espitia, J. Lewis, S. Kernan, J. Beard, and Hull (erroneously

24

sued as Hall) previously moved to dismiss Plaintiff’s claims against them. See Doc. Nos.

25

26, 28, 35. Plaintiff failed to respond to Defendants’ motions, and the Court granted the

26

motions and dismissed his claims against these Defendants without prejudice. See Doc.

27

No. 38. Plaintiff now moves for reconsideration by the Court of its dismissal order. See

28

Doc. No. 40. For the reasons set forth below, the Court DENIES Plaintiff’s motion.
1
16cv2713-MMA (KSC)

1

DISCUSSION

2

1. Legal Standard1

3

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

4

reconsider a previous ruling or entry of judgment. See 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). Under Rule 59(e), it is appropriate to alter or amend a

7

previous ruling if “(1) the district court is presented with newly discovered evidence, (2)

8

the district court committed clear error or made an initial decision that was manifestly

9

unjust, or (3) there is an intervening change in controlling law.” United Nat. Ins. Co. v.

10

Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). Rule 60(b)(6) provides

11

that a motion for “relief from judgment or order” may be granted “for any other reason

12

justifies relief.” Fed. R. Civ. P. 60(b).

13

To carry the burden of proof, the party seeking reconsideration must show more

14

than a disagreement with the Court’s decision or a recapitulation of the cases and

15

arguments previously considered by the court. See United States v. Westlands Water

16

Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). A motion for reconsideration may

17

not be used as a vehicle to re-litigate old matters, raise new arguments, or present

18

evidence that could have been raised prior to entry of the judgment. See Exxon Shipping

19

Co. v. Baker, 544 U.S. 471, 486-87 (2008); see also Kona Enters., Inc. v. Estate of

20

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

21

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

22

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

23
24
25
26

27

1

28

Although Plaintiff brings this motion pursuant to Federal Rule of Civil Procedure 60(b)(6), a timely
motion for reconsideration may be brought under either Rule 59(e) or Rule 60(b). Taylor v. Knapp, 871
F.2d 803, 805 (9th Cir. 1989).
2
16cv2713-MMA (KSC)

1

2. Analysis

2

Plaintiff seeks reconsideration of the Court’s dismissal order, arguing that

3

dismissal of his claims “conflicts with this Court’s express finding that Plaintiff stated a

4

claim sufficient to survive requisite 28 U.S.C. § 1915(e)(2), and 1915A(b) screening.”

5

Doc. No. 40 at 1. Plaintiff asserts that he believed no response to Defendants’ motions

6

was necessary because Defendants’ motions to dismiss were “an attack” on the Court’s

7

screening order, such that Plaintiff “expected an order denying Defendants’ motion[s] to

8

dismiss as frivolous with a warning for sanctions for future disregard of the Court’s time

9

and resources.” Id. at 7. This argument is quickly disposed of, as “the sua sponte

10

screening and dismissal procedure is cumulative of, and not a substitute for, any

11

subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v.

12

Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).

13

Plaintiff also laments his lack of a copy of this District’s Local Rules, which he

14

claims contributed to his apparent misunderstanding of the requirement that he respond to

15

Defendants’ motions. Id. at 4. However, the Local Rules merely set forth the ordinary

16

deadline for opposing a motion. See SD CivLR 7.1.e. The Court specifically advised

17

Plaintiff in its screening order that Defendants would be responding to his complaint

18

pursuant to Federal Rule of Civil Procedure 12. See Doc. No. 3 at 7 (ordering

19

“Defendants, once they have been served, to reply to Plaintiff’s Complaint within the

20

time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).”).

21

Moreover, Plaintiff concedes that he has a 2009 copy of the Federal Rules of Civil

22

Procedure at his disposal. See Doc. No. 40 at 4. Even a cursory review of Rule 12 makes

23

clear that a defendant may assert several types of defenses in a motion, and if so, the

24

motion “must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ.

25

P. 12(b). Thus, Plaintiff was on notice that any of the named defendants could respond to

26

Plaintiff’s complaint by filing a motion to dismiss his claims.

27
28

Plaintiff is not a stranger to motion practice, including those challenging the
plausibility of his claims under Rule 12(b). Rather, Plaintiff is a seasoned litigant who
3
16cv2713-MMA (KSC)

1

has prosecuted multiple previous federal civil rights actions. See, e.g., Allen v. County of

2

Stanislaus, Case No. 1:13-cv-00012-DAD-SAB (E.D. Cal.); Allen v. Cheung, Case No.

3

1:09-cv-00930-AWI-JLT (E.D. Cal.); Allen v. Kernan, Case No. 3:16-cv-1923-CAB-

4

JMA (S.D. Cal.). Thus, his alleged unfamiliarity with litigation generally, the rules

5

applicable to civil cases, and the requirement that he support his claims, is suspect at best.

6

The Court also notes that Plaintiff has previously failed to oppose motions to

7

dismiss his claims, been advised by the court of his need to actively litigate his case, and

8

then later sought relief based on similar arguments which he raises in his current motion

9

for reconsideration. See Doc. No. 35 at 2, Case No. 1:13-cv-00012-DAD-SAB (E.D.

10

Cal.) (asserting that he failed to oppose the defendants’ motion to dismiss because he

11

construed their motion as “an attempt to delay the filing of an answer.”). As such,

12

Plaintiff’s contention of ignorance of the applicable law and procedure is not credible. In

13

any event, “ignorance of the law, even for an incarcerated pro se prisoner, generally does

14

not excuse prompt filing.” Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999).

15

Finally, and importantly, Plaintiff has not otherwise demonstrated any meritorious

16

substantive basis for relief under the applicable legal standards, and has therefore not met

17

his burden as the party moving for reconsideration. Mindful of its duty to “construe pro

18

se pleadings liberally,” Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir.

19

2003), the Court has carefully considered Plaintiff’s motion, and finds that Plaintiff fails

20

to assert any legally cognizable basis to support reconsideration of the Court’s previous

21

ruling.

22

CONCLUSION

23

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

24

IT IS SO ORDERED.

25
26

DATE: November 29, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

27
28
4
16cv2713-MMA (KSC)