Sharp v. Toole County et al

Filing 29

ORDER denying 25 Motion to Strike Order Adopting Findings and Recommendations as construed as a Rule 59(e) Motion to Alter or Amend Judgment. Signed by Judge Brian Morris on 3/17/2015. Mailed to Sharp. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DARRELL DEAN SHARP,

CV 14-62-GF-BMM

Plaintiff,
ORDER
vs.
CCA, TOOLE COUNTY, and
WARDEN FENDER,
Defendants.
Plaintiff Darrell Sharp, a state inmate proceeding without counsel, filed a
Complaint on August 28, 2014, alleging he was assaulted by a correctional officer
and another inmate at CCA. He claimed that Defendants CCA, Toole County, and
Warden Fender were liable under 42 U.S.C. § 1983 because they failed to protect
him from the inmate and refused to bring criminal charges against the officer.
(Complaint, Doc. 2.)
Pursuant to 28 U.S.C. §§ 1915, 1915A, United States Magistrate Judge
Strong conducted an initial screening of the Complaint and found that it failed to
state a viable claim against the named Defendants. Judge Strong gave Mr. Sharp
an opportunity to file an amended complaint and provided an extension of time in

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which to do so. (Docs. 12, 14.) Mr. Sharp failed to file an amended complaint and
his case was recommended for dismissal. (Doc. 19.) Mr. Sharp filed objections to
the recommendation to dismiss (Doc. 20), but after a de novo review of the
Findings and Recommendations this Court found that there was no error in the
Findings and Recommendations and the case was dismissed and judgment entered.
(Docs. 23, 24.)
Mr. Sharp filed a document entitled “Motion to Strike Order Adopting
Findings and Recommendations” on March 2, 2015. (Doc. 25.) Mr. Sharp’s
motion could be construed as a Rule 59(e) Motion to Alter or Amend a Judgment
or as a Rule 60(b) Motion for Relief from Judgment or Order. The Ninth Circuit
set forth the following grounds justifying reconsideration under Rule 59(e):
(1) if such motion is necessary to correct manifest errors of law or fact
upon which the judgment rests; (2) if such motion is necessary to
present newly discovered or previously unavailable evidence; (3) if
such motion is necessary to prevent manifest injustice: or (4) if the
amendment is justified by an intervening change in controlling law.
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). A Rule 59(e)
motion “must be filed no later than 28 days after the entry of the judgment.”
Rule 60(b) provides for reconsideration where one or more of the following
is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence, that with reasonable diligence could not have been
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discovered before the time to move for a new trial under Rule 59; (3) fraud,
misrepresentation, or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; or (6) any other reason
justifying relief. Fed.R.Civ.P. 60(b).
A motion for reconsideration filed within twenty-eight days of entry of
judgment is considered under Federal Rule of Civil Procedure 59(e); a later-filed
motion is considered under Rule 60(b). United States v. Comprehensive Drug
Testing, Inc., 513 F.3d 1085, 1098 (9th Cir. 2008) (quoting Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001)).
Mr. Sharp filed his Motion on March 2, 2015, which was within
twenty-eight days of the entry of the February 20, 2015 Judgment. Accordingly,
the Motion will be analyzed pursuant to Rule 59(e), although the analysis and
ruling would be the same if analyzed pursuant to Rule 60(b)(2).
Mr. Sharp moves to strike the Order Adopting the Findings and
Recommendations for the following reasons: (1) the Judges were biased and he
has filed a Judicial Standards Complaint against them making the order invalid; (2)
the case was dismissed prior to discovery and therefore allows an assault to go
unpunished and he has been retaliated against; and (3) he was denied counsel.

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1. Bias–Judicial Standards Commission
Mr. Sharp suggests that the Judges involved in this matter should have been
recused and the failure to do so makes the Order adopting the Findings and
Recommendations invalid. The substantive standard for recusal under 28 U.S.C. §
144 and 28 U.S.C. § 455 is the same: “[W]hether a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned.” United States v. Studley, 783 F.2d 934, 939 (9th Cir.
1986) (quotation omitted). Ordinarily, the alleged bias must stem from an
“extrajudicial source.” Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct.
1147, 1157, 127 L.Ed.2d 474 (1994). “The judge against whom the motion for
recusal is filed may determine the legal sufficiency of the affidavit.” O’Connor v.
U.S., 935 F.2d 275 (9th Cir. 1991).
“[J]udicial rulings alone almost never constitute valid basis for a bias or
partiality motion.” Id. “[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id.
Mr. Sharp alleges the Judges failed to follow the Federal Rules of Civil
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Procedure and Rules of Evidence, there were discovery abuses, and a violation of
his right to a jury trial. He also contends he has filed a complaint with the Judicial
Standards Commission making the order invalid. All of the Judges involved in this
matter have followed the rules of procedure and evidence. The Court conducted an
initial screening of Mr. Sharp’s Complaint as required by 28 U.S.C. §§ 1915,
1915A. The Court gave Mr. Sharp an opportunity to file an amended complaint
after discussing the defects with his initial Complaint. And the Court gave Mr.
Sharp an extension of time to file an amended complaint. Mr. Sharp did not name
a proper defendant in his initial complaint. The Court advised Mr. Sharp of this
problem and he failed to correct it. The Court made efforts to protect Mr. Sharp’s
rights and none of the Judges ever displayed antagonism toward Mr. Sharp. No
basis exists on which to question the Judges’ impartiality in this matter. No
evidence of bias exists and as such, Mr. Sharp’s allegations are an insufficient
basis upon which to alter or amend the judgment in this case.
2. Initial Screening–unpunished assault–no investigation
Mr. Sharp raises a number of complaints regarding the initial screening of
the Complaint and the fact that the Court dismissed the case prior to him being
allowed to conduct discovery or have a jury trial. Because he is a prisoner
proceeding in forma pauperis, the Court was required by statute to review Mr.
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Sharp’s Complaint to determine if the allegations were frivolous, failed to state a
claim upon which relief may be granted, or sought monetary relief from a
defendant who was immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A.
The Court conducted this review. The Court gave Mr. Sharp an opportunity to file
an amended complaint and he failed to do so. The statute permits dismissal of this
matter prior to discovery under these circumstances. The Court’s dismissal fails to
provide a basis to alter or amend the judgment.
Similarly, the fact that an assault has gone unpunished or that this matter has
not been throughly investigated as Mr. Sharp contends, is not the fault of the Court.
Mr. Sharp failed to file an amended complaint which lead to the dismissal of this
case. No conspiracy exists and whether Mr. Sharp has been retaliated against fails
to provide a basis to reconsider the dismissal of this case. This case was dismissed
because Mr. Sharp failed to name a proper defendant. Mr. Sharp raised additional
information regarding Warden Fender in his objections to the Findings and
Recommendations. This additional information proved insufficient to establish
supervisory liability against the Warden. “A defendant may be held liable as a
supervisor under § 1983 if there exists either (1) his or her personal involvement in
the constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652
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F.3d 1202, 1207 (9th Cir. 2011). A supervisor who is informed of an alleged
constitutional violation, e.g., pursuant to reviewing an inmate’s
administrative grievance, may be liable if he failed to remedy it. Jett v. Penner,
439 F.3d 1091, 1098 (9th Cir. 2006). If a constitutional violation is complete,
however, and a supervisory grievance reviewer is simply making a determination
on whether the prison should provide a remedy for a past violation, the supervisory
grievance reviewer has no part in causing the constitutional violation.
Mr. Sharp alleges, in his objections, that Warden Fender was involved in his
prison transfer and in the denial of his disciplinary appeal, that Warden Fender had
knowledge of Officer Botts’ harassment, that Warden Fender was on duty at the
time of both assaults, and that Warden Fender was aware of his medical needs.
(Objections, Doc. 20 at 3-4.) None of these allegations would be sufficient to
establish supervisory liability. Mr. Sharp did not raise claims in his original
complaint regarding his transfer or his disciplinary appeal. His claim against
Officer Botts was an excessive force claim regarding the incident on August 1,
2014. No allegation in any of Mr. Sharp’s multiple filings indicates that Warden
Fender was made aware of a constitutional violation prior to or during the course
of that alleged violation such that he would have been in a position to stop the
violation. Mr. Sharp fails to explain how Warden Fender had been made aware of
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his medical needs. The Court advised Mr. Sharp in the order allowing him to file
an amended complaint that allegations against supervisors which resemble “bald”
and “conclusory” allegations would be dismissed. Hydrick v. Hunter, 669 F.3d
937 (9th Cir. 2012). He was specifically told that allegations that a supervisory
defendant had personal knowledge of a constitutional violation would be
insufficient without “specific allegations regarding each Defendant’s purported
knowledge” of the violation. Hydrick, 669 F.3d at 942. Mr. Sharp did not provide
any such information in any of his filings and therefore failed to plead sufficient
factual allegations against Warden Fender.
No basis exists upon which to alter or amend the judgment on these grounds.

3. Counsel
Mr. Sharp also complains that the Court’s refusal to appoint him counsel
provides a basis to alter or amend the judgment. No one, including incarcerated
prisoners, possess a constitutional right to be represented by appointed counsel
when they bring a civil lawsuit under 42 U.S.C. § 1983. Rand v. Rowland, 113
F.3d 1520, 1525 (9th Cir. 1997), withdrawn on other grounds, 154 F.3d 952, 962
(9th Cir. 1998). Unlike criminal cases, the statute that applies does not give a court
the power to simply appoint an attorney. Title 28 of U.S.C. § 1915 only allows
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the Court to “request” counsel to represent a litigant who is proceeding in forma
pauperis. 28 U.S.C. § 1915(e)(1); Mallard v. United States Dist. Court, 490 U.S.
296, 310 (1989). Further, a judge may request counsel for an indigent plaintiff
only under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation of both
‘the likelihood of success on the merits and the ability of the petitioner
to articulate his claims pro se in light of the complexity of the legal
issues involved.’ Neither of these factors is dispositive and both must
be viewed together before reaching a decision.
Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
Cir. 1986) (citations omitted).
Mr. Sharp did not make a sufficient showing of exceptional circumstances.
He failed to name a proper defendant, and, therefore, he had not made an adequate
showing of likelihood of success on the merits. See Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). Mr. Sharp’s Motions for Appointment of counsel were
all properly denied.
Mr. Sharp has stated no basis to reconsider the Court’s February 20, 2015
Order dismissing this case. There is no new evidence, no fraud, no mistake, no
manifest error of law or fact, and no manifest injustice upon which this Court
should reconsider its prior Order.
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Accordingly, IT IS HEREBY ORDERED that Mr. Sharp’s Motion to Strike
Order Adopting Findings and Recommendations as construed as a Rule 59(e)
Motion to Alter or Amend Judgment (Doc. 25) is DENIED.
DATED this 17th day of March, 2015.

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