Schwartzmiller et al v. Rodriguez et al

Filing 14

ORDER denying 8 Motion for relief from judgment or order and sua sponte granting extension of time to file First Amended Complaint. Plaintiff is sua sponte granted forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. (Blank complaint form mailed to Plaintiff). Signed by Judge John A. Houston on 9/19/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEAN A. SCHWARTZMILLER,

Case No.: 3:17-cv-00538-JAH-PCL

Plaintiff,

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ORDER DENYING MOTION FOR
RELIEF FROM JUDGMENT OR
ORDER AND SUA SPONTE
GRANTING EXTENSION OF TIME
TO FILE FIRST AMENDED
COMPLAINT

v.
K. RODRIGUEZ, et al.,
Defendants.

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I.

Procedural History
On March 16, 2017, Dean Schwartzmiller (“Plaintiff”), currently incarcerated at

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Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and

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proceeding pro se, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983

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(Doc. No. 1). In addition, he filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). On May 22, 2017, the Court granted

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Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to

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state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (Doc. No.

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3 at 12-13.)
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Plaintiff was granted leave to file an amended pleading in order to correct the

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deficiencies of pleading identified in the Court’s Order. (Id. at 13.) Instead of following

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the Court’s Order, Plaintiff filed a Motion for Preliminary Injunction which the Court

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denied on June 6, 2017. (Doc. Nos. 5, 6.) Plaintiff then filed a “Motion to Alter or

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Amend” pursuant to Fed.R.Civ.P. 52(b) & 59(e). (Doc. No. 8.) Soon after, Plaintiff filed

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a Notice of Appeal to the Ninth Circuit regarding the Court’s June 6, 2017 Order denying

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Plaintiff’s Motion for Preliminary Injunction. (Doc. No. 9.) On September 13, 2017, the

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Ninth Circuit issued an Order summarily affirming this Court’s June 6, 2017 Order

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finding that “a review of the record and the opening brief indicates that the questions

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raised in this appeal are so insubstantial as to not require further argument.” (Doc. No.

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13 at 1.)

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II.

Plaintiff’s Motion

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A.

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While Plaintiff purports to bring this Motion pursuant to Rule 52(b) and Rule 59(b),

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both of those sections relate to judgments and no judgment has yet to be entered in this

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matter. Plaintiff’s Complaint was dismissed without prejudice and with leave to amend.

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However, a motion requesting reconsideration of a matter previously decided may be

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construed as a motion to alter an order pursuant to Rule 60(b). See Osterneck v. Ernst &

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Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d

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1306, 1311 (9th Cir. 1994).

Standard of Review

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Rule 60(b) provides for reconsideration where one or more of the following is

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shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

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evidence which by due diligence could not have been discovered before the court's

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decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied; (6) any other reason justifying relief. FED. R. CIV. P. 60(b); School Dist. 1J

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v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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“Although the application of Rule 60(b) is committed to the discretion of the district

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courts . . ., as a general matter, Rule 60(b) is remedial in nature and must be liberally

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applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir. 2001)

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(internal quotation marks and ellipsis omitted). Nevertheless, Rule 60(b) provides for

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extraordinary relief and may be invoked only upon a showing of “exceptional

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circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994).
Plaintiff’s arguments

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B.

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Plaintiff claims that this Court is “biased and prejudiced” as well as “legally,

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factually and morally wrong.” (Pl.’s Mot. at 1.) Plaintiff maintains that each ground of

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dismissal contained in the Court’s May 22, 2017 Order were “improvidently decided for

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‘good ole boys’.” (Id. at 2.)

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1.

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IFP Motion

Plaintiff indicates that the granting of his IFP Motion “is the only portion of the

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documents submitted to this Court that was accepted as being correct but only so it could

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deduct the $350.00 filing fee from Plaintiff’s trust account.” (Id.) Plaintiff “suggests”

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that the Court “secure this money from Plaintiff’s Social Security account that he has

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paid into ever since 1952 but cannot draw out of now because he is in prison.” (Id.)

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified
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copy of the trust fund account statement (or institutional equivalent) for ... the 6-month

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period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly

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deposits in the account for the past six months, or (b) the average monthly balance in the

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account for the past six months, whichever is greater, unless the prisoner has no assets. 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the

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prisoner then collects subsequent payments, assessed at 20% of the preceding month's

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income, in any month in which his account exceeds $10, and forwards those payments to

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the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct.

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at 629.

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There is no discretion for the Court to garnish the $400 filing fee from any account

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other than the one held in Plaintiff’s name in the institution where he is housed.

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Plaintiff’s request that the Court garnish the filing fee from any other source is DENIED.

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2.

Plaintiff’s Complaint

Plaintiff claims that the Court “ignored” his claims of conspiracy between prison

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officials and John Larson, the journalist who produced a news story about Plaintiff which

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apparently aired in NBC in 2006. (Pl.’s Mtn. at 3.) Plaintiff’s Complaint contains a

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number of allegations that there are falsehoods and lies perpetuated by this journalist

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throughout the program that aired. Plaintiff allegations that there is a conspiracy

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between a journalist and “prosecution authorities in San Jose, California,” as well as

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Defendant Noel, an FBI agent, all arise from events that occurred in 2006. (Compl. at 22,

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24.) As the Court found in the May 22, 2017 Order, these claims fall far outside the

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applicable statute of limitations. (Doc. No. 3 at 9.) Plaintiff has offered no facts from

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which the Court could find that he is eligible for equitable tolling of these claims.

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Plaintiff does not identify the alleged conspiracy between Larson and RJD

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officials. Instead, he alleges that Larson caused this story to be placed on the internet,

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presumably because it aired on a NBC news program, and many years later RJD officials
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retrieved this story from the internet. (Pl.’s Mot. at 3.) He has been given leave to

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correct the deficiencies of pleading identified by the Court. Even if Plaintiff does seek to

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amend his Complaint to add a clear conspiracy claim between Larson, NBC News and

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RJD officials, it is unlikely that such a claim would be plausible to survive the sua sponte

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screening process.

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42 U.S.C. § 1985 proscribes conspiracies to interfere with certain civil rights.

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Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988). In

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order to state a claim for conspiracy, Plaintiff must allege that two or more Defendants

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conspired “for the purpose of impeding, hindering, obstructing, or defeating, in any

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manner, the due course of justice in any State or Territory, with intent to deny [him] the

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equal protection of the law.” 42 U.S.C. § 1985(2). The absence of a § 1983 deprivation

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of rights precludes a § 1985 conspiracy claim based on the same allegations. Cassettari

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v. Nevada County, Cal., 824 F.2d 735, 739 (9th Cir. 1987); see also Mahaney v. Warren

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County, 206 F.3d 770, 772 (8th Cir. 2000) (holding that “bare” allegations are

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insufficient to support a claim under § 1985 for civil conspiracy). Here, Plaintiff’s

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claims that there is a connection between an airing of a broadcast in 2006, apparently also

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available on the internet since 2006, and prison officials locating this broadcast ten years

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later is not a plausible conspiracy claim. Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether a complaint

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states a plausible claim for relief [is] . . . a context-specific task that requires the

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reviewing court to draw on its judicial experience and common sense.” Id. at 679. The

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“mere possibility of misconduct” falls short of meeting the Iqbal plausibility standard.

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Id.; see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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Plaintiff also disagrees with the Court’s determination that he could not proceed on

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behalf “Christopher Dean Harmon, Jr., a minor child” whom he listed as a co-plaintiff.

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Plaintiff’s Complaint describes Harmon as a “minor adolescent now 15 years of age” and
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is Plaintiff’s “Heir Apparent.” (Compl. at 6.) In his Motion, Plaintiff argues that he

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should be able to represent other individuals because he has been named as a lead

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plaintiff in a class action and he has “over 40 years of both pleading and trial court

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experience for both attorneys and other prisoners.” (Pl.’s Mot. at 6.)

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Plaintiff appears to confuse the right to assist other prisoners in preparing legal

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work with actually appearing on behalf of other inmates or individuals in any Court.

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Rule 11 clearly provides “[e]very pleading, written motion, and other paper shall be

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signed by at least one attorney of record in the attorney’s original name, or if the party is

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not represented by an attorney, shall be signed by the party.” Fed.R.Civ.P. 11(a). Here,

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purported Plaintiff Harmon has not signed the Complaint nor filed a separate Motion to

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Proceed IFP. Plaintiff, as a non-attorney party appearing IFP on his own behalf, does not

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have the right to represent any other party. See C.E. Pope Equity Trust v. U.S., 818 F.2d

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696, 697 (9th Cir. 1987).

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Plaintiff further maintains this Court’s “decision to dismiss [Plaintiff’s Eighth

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Amendment claim] epitomizes its bias and prejudice toward both this Plaintiff and the

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subject matter of this Complaint, but like it or not, Lawrence v. Texas, 539 U.S. 558

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(2003) is reality and has been so now for 14 years.” (Pl.’s Mot. at 14.) Plaintiff’s

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argument relating to his Eighth Amendment claims is incoherent. These claims were

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dismissed because they were duplicative of claims he litigated in another matter. See

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Schwartzmiller, et al. v. Brown, et al., S.D. Cal Civil Case No. 3:13-cv-01253-WQH-

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NLS. It is not at all clear on what basis Plaintiff claims that the Court was biased or

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prejudiced towards him. Plaintiff appears to have a misunderstanding that the Court

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dismissed his entire action as duplicative but this portion of the Order related only to his

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Eighth Amendment claims. (See Doc. No. 3 at 10.)

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Plaintiff’s entire Motion contains allegations that this Court is biased without any

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specific factual allegations. Plaintiff claims “when there is biased and prejudicial or

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bigoted states of mind, in either the Court or the carefully selected Orwellian law clerks,

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such an Order as was made here is the result.” (Pl.’s Mot. at 7.) Plaintiff’s Motion
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contains a number of such statements but he fails to properly support any of this

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arguments with coherent factual allegations or relevant legal authority. Because Plaintiff

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has provided no basis for the Court to vacate or set aside its May 22, 2017 Order, relief

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under Rule 60 is not warranted. See School Dist. No. 1J, 5 F.3d at 1442; Engleson, 972

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F.2d at 1044. A motion for reconsideration cannot be granted simply because Plaintiff is

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unhappy with the judgment, frustrated by the Court’s application of the facts to binding

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precedent or because he disagrees with its ultimate decision. See 11 Charles Alan Wright

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& Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2015) (citing

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Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)).

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III.

Conclusion and Order

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For these reasons, IT IS ORDERED that:

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(1)

Plaintiff’s Motion to Alter or Amend Order (Doc. No. 8) is DENIED.

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(2)

Plaintiff is sua sponte GRANTED forty-five (45) days leave from the date

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of this Order in which to file an Amended Complaint which cures all the deficiencies of

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pleading noted in the Court’s May 22, 2017 Order. Plaintiff’s Amended Complaint must

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be complete in itself without reference to his original pleading. Defendants not named

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and any claims not re-alleged in the Amended Complaint will be considered waived. See

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S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

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1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with

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leave to amend which are not re-alleged in an amended pleading may be “considered

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waived if not repled.”).

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(3)

The Clerk of Court is directed to mail to Plaintiff, together with this Order, a

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blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C.

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§ 1983” for his use in amending.

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Dated: September 19, 2017

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Hon. John A. Houston
United States District Judge

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