Cabrera v. Hubmer et al

Filing 49

ORDER DENYING MOTION FOR RECONSIDERATION re: 48 . Signed by JUDGE DERRICK K. WATSON on 11/7/2018. (afc)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRED CABRERA, #A0114810,
Plaintiff,
vs.
BENJAMIN HUBMER, et al.,
Defendants.
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Civ. No. 1:17-cv-00367 DKW-KJM
ORDER DENYING MOTION FOR
RECONSIDERATION

Before the Court is pro se Plaintiff Fred Cabrera’s Motion for Relief of
Summary Judgement and Dismiss Without Prejudice Order and Motion to Reopen Case (Motion for Reconsideration). Mot., ECF No. 48. Cabrera seeks
reconsideration of the July 6, 2018 Order Granting Defendant’s Motion for
Summary Judgment that was based on Cabrera’s failure to exhaust his claim
before bringing this action. See Order, ECF No. 47. Because the time to alter or
amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure has
passed, the Court review’s Cabrera’s Motion for Reconsideration pursuant to Rule
60. For the following reasons, Cabrera’s Motion for Reconsideration is DENIED.
I.

BACKGROUND

Cabrera is now incarcerated at the Saguaro Correctional Center (SCC) in
Arizona, but he was incarcerated at the Halawa Correctional Facility (HCF) in

Hawaii when he filed his initial Complaint on July 27, 2017. ECF No. 1. Cabrera
alleged that Defendants Malia Anderson and Manny Tavares violated his
constitutional rights while he was incarcerated at the Oahu Community
Correctional Center (OCCC) several months earlier when they ordered him to
assist a mentally ill inmate, who then assaulted Cabrera. Cabrera filed the
operative, First Amended Complaint (FAC) on September 20, 2017. ECF No. 7.
The Court directed service of the FAC on September 22, 2017, as limited to claims
alleged against Defendants Anderson and Tavares in their individual capacities.
ECF No. 8.
On April 27, 2018, Anderson and Tavares filed a Motion for Summary
Judgment (MSJ) seeking dismissal of the action pursuant to 42 U.S.C. § 1997e(a),
for Cabrera’s failure to file any grievances relating to his claims. ECF No. 34.
On July 6, 2018, the Court held that Cabrera had failed to exhaust his
claims, although he had the opportunity and ability to do so, granted Defendants’
MSJ, and entered judgment. ECF Nos. 46 & 47.
On November 2, 2018, Cabrera filed the Motion for Reconsideration.
II.

DISCUSSION

Rule 60(b) “provides for reconsideration upon a showing of (1) mistake,
surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void
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judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary
circumstances’ which would justify relief.” Sch. Dist. No. 1J, Multnomah Cty. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Motions for reconsideration are
not a substitute for appeal and should be infrequently made and granted. See
Twentieth Century Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir.
1981); see also Grandinetti v. Hyun, 2017 WL 239741, at *1 (D. Haw. Jan. 19,
2017).
Cabrera states that he is untrained in the law and declares, as he did in his
Opposition to the MSJ, that he feared retaliation if he filed a grievance while still
incarcerated at OCCC, where Tavares and Anderson were employed. He again
asserts that he was hampered in his efforts to exhaust his claims once he
transferred to SCC. Cabrera submits copies of his three recent attempts to obtain
grievance forms at SCC, which would enable him to now grieve the incidents that
allegedly occurred at OCCC on or about June 22, 2017. See Exs. A-C, ECF No.
47-1 (dated October 1, 4, and 10, 2018).
Cabrera’s exhibits show that the Department of Public Safety’s (DPS) SCC
contract monitor, Ms. Bechler, informed Cabrera that: (1) if the incident occurred
in Hawaii, as it appeared, he could only continue a grievance that had already been
initiated in Hawaii; and (2) if the incident occurred “several years” earlier, as it
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also appeared, the time to file a grievance was likely expired. She told him that he
could contact the Ombudsman or a legal representative.
Because Cabrera failed to explain why he feared retaliation at OCCC, or
why he was unable to file a grievance while he was housed in HCF for three
months before his transfer to SCC, or provide any evidence showing that the
grievance process was effectively unavailable to him, the Court rejected Cabrera’s
exhaustion defenses and granted Defendants’ MSJ. See ECF No. 46, PageID
#199-200. Cabrera’s Motion for Reconsideration and declaration provide nothing
that refutes this finding.
Moreover, Cabrera’s exhibits clarify that he filed no grievances regarding
his claims before he brought this action to federal court and is only attempting to
do so now. Ms. Bechler’s explanation that Cabrera cannot grieve an incident that
allegedly occurred more than a year and a half ago at OCCC because it is too late,
is simply an expression of DPS policy. See DPS Policy No. COR.12.03.8.1-2
(stating grievances must be filed within fourteen days of the incident grieved,
absent good cause). Cabrera’s explanation to her that he cannot sue in federal
court without grieving his claims is correct. If those processes were available at
the outset as this Court held, however, and are now unavailable due to DPS policy,
Cabrera has lost his opportunity to raise these claims in the federal courts.
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Cabrera is free to appeal this determination.
Cabrera fails to demonstrate mistake, surprise, excusable neglect, newly
discovered evidence, fraud, or extraordinary circumstances that persuade this
Court to reconsider its July 6, 2018 Order Granting Defendant’s Motion for
Summary Judgment. The Motion for Reconsideration (and to reopen the case),
Dkt. No. 48, is DENIED.
IT IS SO ORDERED.
DATED: November 7, 2018 at Honolulu, Hawaii.

Fred Cabrera v. Benjamin Hubmer, et al.; Civil No. 17-00367 DKW-KJM;
ORDER DENYING MOTION FOR RECONSIDERATION

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