Arrant v. Zambrano

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY ARRANT Case No.: 3:20-cv-01220-JLS-AGS CDCR No. K98602, 12 ORDER DENYING MOTION FOR Plaintiff, 13 RECONSIDERATION vs. 14

M. ZAMBRANO, et al., 15 Defendants. (ECF No. 14) 16 17 18 19 Presently before the Court is Plaintiff Melvin Ray Arrant’s Second Motion for 20 Reconsideration, in which he asks the Court to reconsider its December 11, 2020 Order 21 dismissing his case. (“2d Mot. Recon.,” ECF No. 14.) On June 29, 2020, Plaintiff filed 22 this civil action pursuant to 42 U.S.C. § 1983 (“Compl.”), together with a Motion to 23 Proceed in Forma Pauperis (“IFP”), and a Motion for Temporary Restraining Order 24 (“TRO”). (ECF Nos. 1–3.) On September 9, 2020, the Court granted Plaintiff’s IFP, 25 denied his TRO, and dismissed the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 26 § 1915A(b). (ECF No. 6.) The Court granted Plaintiff sixty (60) days to file an amended 27 complaint. (Id.) 28 /// 1 On September 30, 2020, Plaintiff filed a document entitled “Plaintiff’s Objections 2 to Magistrate Judge Finding and Recommendations to Dismiss Plaintiff’s Complaint for 3 Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),” which the 4 Court construed as a Motion for Reconsideration. (“Mot. for Recons.,” ECF No. 8.) The 5 Court denied the Motion on October 15, 2020. (ECF No. 10.) 6 Plaintiff then filed an Amended Complaint on October 15, 2020. (“Am. Compl.,” 7 ECF No. 10.) The Court dismissed the Amended Complaint pursuant to 28 U.S.C. 8 §§1915(e)(2) and 1915A(b) on December 11, 2020 without further leave to amend because 9 the Court found any amendment would be futile. (ECF No. 11.) Plaintiff filed the Second 10 Motion for Reconsideration on January 7, 2021. (ECF No. 14.) 11 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with 12 newly discovered evidence, (2) the district court committed clear error or made an initial 13 decision that was manifestly unjust, or (3) there is an intervening change in controlling 14 law.’” Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City 15 of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a substantive 16 change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) 17 (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)), and “is 18 an extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197 19 F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to “‘relitigate old matters, 20 or to raise arguments or present evidence that could have been raised prior to the entry of 21 judgment.’” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1117 (D. Nev. 22 2013) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d 23 ed. 1995)). 24 In the present Motion, Plaintiff argues the Court wrongly dismissed his case and 25 repeats the allegations he made in his Original Complaint, his Amended Complaint, and 26 his first Motion for Reconsideration. For example, Plaintiff again claims that he asked 27 Defendant Zambrano for a bed or cell move, and that while he was told to wait until the 28 weekend, he observed other inmates, who he claims are gay, bisexual, or are informants, 1 have their requests for bed moves granted while Defendant ignored his request. Compl. at 2 4; Mot. for Recons. at 3–6; Am. Compl. at 3; 2d Mot. for Recons. at 3–4. Plaintiff claims 3 this was a violation of the Equal Protection Clause. Compl. at 4; Mot. for Recons. at 3–6; 4 Am. Compl. at 3–4; 2d Mot. for Recons. at 3–4. Plaintiff also repeats his claims that after 5 he filed a 602 complaining about the lack of a cell move, Defendant Zambrano told him “a 6 602 ain’t shit,” that “legal [beagles] ain’t got nothing coming,” that “Plaintiff wasn’t the 7 only one who knew how to write,” and then Plaintiff claims Zambrano retaliated against 8 him by generating a falsified rules violation report (“RVR”) against Plaintiff and accused 9 him of disrespecting staff by calling Zambrano “Mark.” Compl. at 4; Mot. for Recons. at 10 6–8; Am. Compl. at 3; 2d Mot. for Recons. at 4–6, 7–8. 11 In addition, Plaintiff repeats his claims against Defendant Dellinger, who he alleges 12 coughed on his hands, rubbed his nose, and then passed out medication to inmates without 13 changing his gloves. Compl. at 5; Mot. for Recons. at 8–10; Am. Compl. at 4; 2d Mot. for 14 Recons. at 6–7. When Plaintiff asked Dellinger to dispense his medication directly from 15 the medication dispenser into a cup, Plaintiff claims Dellinger “became upset” and told 16 Plaintiff “you don’t get special treatment.” Compl. at 5; Mot. for Recons. at 8–11; Am. 17 Compl. at 4; 2d Mot. for Recons. at 6–7. He further claims that Defendant Hayes refused 18 to give him Dellinger and Hayes’s names, which he needed to file a 602, violating his First 19 Amendment rights by impeding his access to the courts. Compl. at 5; Mot. for Recons. at 20 8–11; Am. Compl. at 4; 2d Mot. for Recons. at 6–7. He also repeats his allegations that 21 Dellinger and Hayes threatened to activate the building alarm “in retaliation.” Compl. at 22 5, Mot. for Recons. at 8–11; Am. Compl at 2, 4; 2d Mot. for Recons. at 6–7, 9–11. 23 In order to justify reconsideration, Local Civil Rule 7.1(i) requires Plaintiff to show 24 that “new or different facts and circumstances . . . exist which did not exist, or were not 25 shown,” at the time the Court denied his last Motion to Reconsider and Motion for a TRO 26 on October 26, 2020. See S.D. Cal. CivLR 7.1(i). “Evidence is only newly discover[ed] 27 if it was in fact previously unavailable—i.e. the party asserting the evidence, acting with 28 reasonable diligence, could not have previously discovered the evidence.” Vasquez v. City 1 || of Idaho Falls, 2018 WL 1123865, at *3 (D. Idaho 2018) (citing Zimmerman v. City of 2 || Oakland, 255 F.3d 734, 740 (9th Cir. 2001)). Plaintiff has not presented any newly 3 || discovered evidence. Ybarra, 656 F.3d at 998. Nor has he demonstrated that “the district 4 ||court committed clear error or made an initial decision that was manifestly unjust, or... 5 [that] there [was] an intervening change in controlling law.” Jd. Accordingly, his Motion 6 Reconsideration (ECF No. 14) is DENIED. 7 IT IS SO ORDERED. 8 || Dated: March 1, 2021 . tt 9 pee Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ee