Fly v. Diaz

• Court: District Court, D. Arizona
• Decided: December 23, 2024
• Docket: 4:21-cv-00506
• Status: Unknown

Opinion

1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 William Anthony Fly, No. CV-21-00506-TUC-SHR 10 Plaintiff, 11 v. ORDER 12 M. Diaz, et al., 13 Defendants.

14 15 Pending before the Court are Plaintiff William Anthony Fly’s1 Motion for 16 Reconsideration (Doc. 106) and Motion to Seal (Doc. 111). 17 I. Background 18 As relevant here, in the First Amended Complaint, Plaintiff asserted claims of 19 sexual assault, threat to safety, and equal protection based on events that occurred while 20 she was in custody at the United States Penitentiary (USP)-Tucson. (Docs. 9, 15.) Plaintiff 21 sought monetary, declaratory, and injunctive relief. (Id.) Plaintiff also filed a Motion for 22 Temporary Restraining Order. (Doc. 14.) 23 In Count One, Plaintiff alleged Defendants Campbell, Vasquez, and Christiansen 24 used excessive force against her. (Doc. 9 at 8.) In Count Three, Plaintiff alleged 25 Defendants Vasquez, Gutierrez, and Wade failed to protect her from an imminent threat of 26 assault. (Id. at 10.) In Count Five, Plaintiff alleged Defendants treated her differently; 27

28 1 Plaintiff identifies as transgender and is also known as Toni Fly. The Court will use feminine pronouns to refer to Plaintiff. 1 placed her at risk of sexual abuse, sexual and physical assault, sexual harassment, and rape; 2 and denied her medical treatment, access to administrative remedies and the courts, due 3 process, equal protection, and security in her person solely because of her transgender 4 status. (Id. at 12.) Plaintiff claimed she had been denied medical care and a safe housing 5 assignment at a female facility because she is transgender. (Id.) Plaintiff alleged she had 6 been denied medically necessary “social role transition therapy,” including gender 7 affirming surgery, as well as assignment to a female facility for her health and safety. (Id.) 8 In her Motion for Temporary Restraining Order, Plaintiff sought an order requiring 9 Defendants to: immediately provide all “gender confirmation surgeries”; immediately 10 transfer and place Plaintiff in a female housing unit or facility with non-violent females; 11 immediately restore Plaintiff to a single cell; restore all Plaintiff’s medical treatments; 12 restore all medical duty status accommodations and medications; restore all email, 13 telephone, visit, and postal correspondence privileges to Plaintiff; provide all “social role” 14 transition therapy; stop the abuse, harassment, mutilation, and rape of Plaintiff; keep 15 Plaintiff separate from all male prisoners and staff; and stop obstructing Plaintiff’s mail 16 correspondence. (Doc. 14 at 28–29.) In addition, Plaintiff sought an order barring 17 Defendants from ever placing Plaintiff in a Special Housing Unit, Special Management 18 Unit, or Administrative Maximum cell, or any USP, Federal Correctional Institution (FCI) 19 medium, or FCI low custody facility for male prisoners. (Id. at 28.) 20 On screening the First Amended Complaint under 28 U.S.C. § 1915A(a), the Court 21 determined Plaintiff had stated an Eighth Amendment claim under Bivens v. Six Unknown 22 Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for sexual assault in 23 Count One against Defendants Campbell, Vasquez, and Christiansen; an Eighth 24 Amendment threat-to-safety claim under Bivens in Count Three against Defendants 25 Vasquez, Gutierrez, and Wade; and an equal protection claim in Count Five for injunctive 26 relief against Defendant Howard in her official capacity only. The Court directed these 27 Defendants to answer the claims. (Doc. 15.) The Court dismissed the other claims and 28 1 Defendants and required the remaining Defendants to respond to the Motion for Temporary 2 Restraining Order. (Id.) 3 On September 12, 2022, Plaintiff filed a Second Emergency Motion for Temporary 4 Restraining Order, and on October 5, 2022, she filed a Motion to Notify the Court of 5 Ongoing and Continuous Violations. (Docs. 44, 48.) Defendants opposed Plaintiff’s 6 motions seeking injunctive relief. (Doc. 55.) 7 On March 1, 2023, the Court denied Plaintiff’s Motions. (Doc. 71.) With respect 8 to the excessive force claim in Count One, the Court determined Plaintiff had not shown a 9 reasonable likelihood of success. (Id. at 8.) As to the threat-to-safety claim in Count Three, 10 the Court determined Plaintiff had not shown she would suffer irreparable harm if the 11 requested relief was not granted. (Id. at 10.) The Court reasoned Plaintiff had not shown 12 she still shared a cell with the prisoner who assaulted her or would share a cell with that 13 prisoner in the future. (Id.) The Court further determined Plaintiff had not shown her 14 current cell mate threatened her and presented a serious risk of harm to Plaintiff. (Id.) The 15 Court also found psychology staff had assessed Plaintiff and determined a single-cell 16 placement was not medically necessary. (Id.) 17 With respect to the equal protection claim in Count Five, the Court noted 18 Defendants had presented evidence Plaintiff was assigned to the USP-Tucson Sex Offender 19 Management Program pursuant to the Federal Bureau of Prison’s (BOP’s) risk and 20 placement assessment policy based on her underlying conviction and her risk of sexual 21 victimization was assessed and determined to be moderate, allowing her to be housed in 22 general population and to have cellmates with low risk of sexual abusiveness. (Doc. 71 at 23 11.) The Court also observed Defendants had presented evidence Plaintiff received 24 hormone therapy, including prescriptions for Estriol and Spironolactone to reduce 25 testosterone and increase estrogen, underwent blood testing to monitor her hormone levels, 26 and continuously received refills of her prescribed medications. (Id.) Additionally, the 27 Court noted BOP had presented evidence Plaintiff did not qualify to be housed in a female 28 facility or for gender reassignment surgery based on the BOP’s medical and mental health 1 analysis and qualifying criteria. (Id.) The Court concluded Plaintiff had not established a 2 likelihood of success on her equal protection claim or irreparable harm absent the requested 3 relief. (Id. at 12.) 4 On February 13, 2024, the Court granted Defendants’ Motion for Judgment on the 5 Pleadings or Summary Judgment. (Doc. 103.) The Court determined Plaintiff’s Eighth 6 Amendment claims in Counts One and Three would extend Bivens in a new context, and 7 Plaintiff had alternative remedies to her. (Id. at 5–6.) The Court therefore declined to 8 extend a Bivens remedy to Plaintiff’s Eighth Amendment claims. (Id.) The Court 9 determined Plaintiff’s claim for injunctive relief in Count Five was moot because the claim 10 related to past events occurring at a prison where Plaintiff was no longer housed, and it 11 was not clear what injunctive relief could be fashioned in light of Plaintiff’s transfer to 12 USP-Coleman, particularly where Defendant Colbert, the current USP-Tucson Warden, 13 was the only Defendant named in Count Five and was not employed at USP-Coleman. (Id. 14 at 6–7.) The Court reasoned Plaintiff’s claim for injunctive relief in Count Five must be 15 dismissed as moot absent any indication in the record Plaintiff would be sent back to USP- 16 Tucson in the foreseeable future or Defendant Colbert had authority to determine Plaintiff’s 17 conditions of confinement at USP-Coleman. (Id. at 7.) 18 On August 30, 2024, Plaintiff filed her Motion for Reconsideration (Doc. 106) and 19 a Notice of Appeal (Doc. 107). On September 24, 2024, the Ninth Circuit Court of Appeals 20 dismissed the appeal because the Notice of Appeal had not been filed or delivered to prison 21 officials within 60 days after the Court’s February 13, 2024 Order. (Doc. 109.) On 22 December 2, 2024, Plaintiff moved to seal the entire record in her case, asserting her “safety 23 is in imminent danger.” (Doc. 111.) 24 II. Motion for Reconsideration 25 A. Effect of Notice of Appeal 26 Because it was untimely, Plaintiff’s Notice of Appeal was not effective and did not 27 divest the Court of jurisdiction to rule on her Motion for Reconsideration. See Ruby v. 28 Sec’y of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“Where the deficiency in a notice 1 of appeal, by reason of untimeliness . . . is clear to the district court, it may disregard the 2 purported notice of appeal and proceed with the case, knowing that it has not been deprived 3 of jurisdiction.”); Levine v. Regents of Univ. of Cal., 181 F. App’x 644, 645 (9th Cir. 2006) 4 (stating untimely notice of appeal was not effective and did not divest the district court of 5 jurisdiction). In any event, Plaintiff’s appeal has been dismissed. The Court may consider 6 the merits of Plaintiff’s Motion. 7 B. Analysis 8 Plaintiff advances five arguments in support of her Motion for Reconsideration. 9 First, Plaintiff asserts the Court erred in concluding her claims are moot. (Doc. 106 at 1– 10 2.) Second, Plaintiff contends Defendants committed a fraud upon the Court, which 11 warrants relief from the Judgment under Rule 60(d) of the Federal Rules of Civil 12 Procedure. (Id. at 2.) Third, Plaintiff argues the Court was biased against her and this case 13 should be reopened pursuant to 28 U.S.C. §§ 144 and 455. (Id. at 3.) Fourth, Plaintiff 14 seeks injunctive relief under Rule 65 of the Federal Rules of Civil Procedure for “ongoing 15 constitutional violations.” (Id. at 3–12.) Fifth, Plaintiff contends the Court abused its 16 discretion by denying her “supplemental motion” under Rule 15(d) of the Federal Rules of 17 Civil Procedure. (Id. at 11.) 18 1. Reconsideration Standard 19 The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 20 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 397 21 (9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of an Order 22 absent a showing of manifest error or a showing of new facts or legal authority that could 23 not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). 24 Any motion for reconsideration must specifically identify the matters overlooked or 25 misapprehended by the Court and any specific modifications being sought in the Court’s 26 Order. Id. If any new matters are being brought to the Court’s attention for the first time, 27 the movant must identify the reasons they were not presented earlier. Id. No motion for 28 1 reconsideration of an Order may repeat any oral or written argument made in support of or 2 in opposition to the motion that resulted in the Order. Id. 3 2. Mootness 4 Plaintiff argues the Court “wrongfully found the instant case moot due to transfer 5 and separation from the named Defendants” who allegedly sexually assaulted and tortured 6 her. (Doc. 106 at 1.) Plaintiff contends the Federal Bureau of Prisons’ Transgender 7 Executive Counsel (BOP-TEC), which is responsible for housing determinations and 8 placement, “continues to place [her] in harm[’]s way” and transferred her to “interfere with 9 these proceeding[s] to obstruct justice and deny [her] due process.” (Id.) She asserts BOP- 10 TEC has transferred her to USP-Terre Haute, USP-Coleman, and FCI-Marianna to interfere 11 with her court proceedings and has “suggested they will return her to USP[-]Tucson or 12 FCI[-]Tucson to face her abusers again.” (Id.) Plaintiff alleges Defendant Christiansen is 13 now the Special Investigations Administrator at FCI-Marianna and has “threatened to 14 prove all of her [Prison Rape Elimination Act] complaints unsubstantiated or unfounded 15 [and] to cover up rape upon her, as he did at USP[-]Tucson.” (Id. at 1–2.) Plaintiff argues 16 this case “cannot be mooted” because Defendants “cannot promise or guarantee” they will 17 “no longer place her in harm[’]s way” with respect to the named Defendants. (Id. at 2.) 18 The Court construes this portion of Plaintiff’s Motion as requesting relief under 19 Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b), which sets forth the 20 grounds for relief from judgment, “provides for reconsideration only upon a showing of 21 (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a 22 void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances’ 23 which would justify relief.” Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 24 1255, 1263 (9th Cir. 1993) (citation omitted). The moving party bears the burden of 25 proving the existence of a basis for Rule 60(b) relief. Cassidy v. Tenorio, 856 F.2d 1412, 26 1415 (9th Cir. 1988). Although the moving party’s factual allegations are to be accepted 27 as true, mere legal conclusions, general denials, or simple assertions are insufficient to 28 justify overturning the underlying judgment. Id. 1 “[A] party merits relief under Rule 60(b)(6) if [s]he demonstrates ‘extraordinary 2 circumstances which prevented or rendered h[er] unable to prosecute” her case. Cmty. 3 Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002) (citation omitted). To show 4 extraordinary circumstances, the party must “demonstrate both injury and circumstances 5 beyond [her] control that prevented [her] from proceeding with the prosecution or defense 6 of the action in a proper fashion.” Id. 7 In the February 13, 2024 Order, the Court sua sponte raised mootness. See 8 Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc) (if a 9 case has become moot, a court must raise mootness sua sponte because it is a jurisdictional 10 issue); Tate v. Univ. Med. Ctr. of S. Nev., 606 F.3d 631, 634 (9th Cir. 2010) (a court lacks 11 jurisdiction when the issues in a case are moot). The Court observed, “When a prisoner 12 seeks injunctive relief concerning the facility where he or she is incarcerated, the prisoner’s 13 claims for such relief become moot when the prisoner is no longer subjected to those 14 conditions.” (Doc. 103 at 7.) As noted, the Court concluded Plaintiff’s claims for 15 injunctive relief were moot. 16 As an initial matter, Plaintiff argues, without evidence, that BOP-TEC transferred 17 her from USP-Tucson while this case was pending to “interfere with these proceeding[s] 18 to obstruct justice and deny [her] due process.” On May 1, 2023, after this case had been 19 pending for nearly a year and a half, Plaintiff filed a Notice of Change of Address stating 20 she had been transferred to USP-Terre Haute. (Doc. 83.) After her transfer, Plaintiff filed 21 various motions, responses, and replies, including her 97-page response to the Motion for 22 Judgment on the pleadings. There is no indication Plaintiff’s transfer prevented her from 23 litigating this case. 24 The Court did not err in concluding Plaintiff’s claims for injunctive relief are moot. 25 When a plaintiff seeks injunctive relief, past injury “does not in itself show a present case 26 or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present 27 adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea 28 v. Littleton, 414 U.S. 488, 495 (1974)). According to the BOP Inmate Locator, Plaintiff 1 has been released to a Residential Reentry Center (RRC) in Minneapolis, Minnesota.2 2 Nothing in the record demonstrates any named Defendants are employed at the 3 Minneapolis RRC, and there is no evidence Plaintiff is suffering an ongoing injury. The 4 Court will deny Plaintiff’s Motion insofar as she seeks reconsideration of the conclusion 5 her claims for injunctive relief are moot. 6 3. Fraud Upon the Court 7 Plaintiff contends Defendants committed a fraud upon the Court and moves for 8 relief under Rule 60(d)(3) of the Federal Rules of Civil Procedure. (Doc. 106 at 2.) 9 Plaintiff alleges “Defendants, their agents, witnesses, or other Declarants lied under penalty 10 of perjury, with intent to deceive the Court, and did deceive the Court, as officers of the 11 Court.” (Id. at 2–3) 12 Rule 60(d)(3) allows the Court to set aside a judgment for fraud on the court. The 13 Supreme Court has “justified the ‘historic power of equity to set aside fraudulently begotten 14 judgments’ on the basis that ‘tampering with the administration of justice . . . involves far 15 more than an injury to a single litigant. It is a wrong against the institutions set up to protect 16 and safeguard the public.’” In re Levander, 180 F.3d 1114, 1118 (9th Cir. 1999) (quoting 17 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). Relief for fraud on the court must be 18 “reserved for those cases of ‘injustices which, in certain instances, are deemed sufficiently 19 gross to demand a departure’ from rigid adherence to the doctrine of res judicata.” United 20 States v. Beggerly, 524 U.S. 38, 46 (1998). The Ninth Circuit has repeatedly emphasized 21 “[e]xceptions which would allow final decisions to be reconsidered must be construed 22 narrowly in order to preserve the finality of judgments.” Abatti v. Comm’r, 859 F.2d 115, 23 119 (9th Cir. 1988); see also Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 24 (9th Cir. 2003); Dixon v. Comm’r, 316 F.3d 1041, 1046 (9th Cir. 2003). 25 Fraud on the court “embrace[s] only that species of fraud which does or attempts to, 26 defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial 27 28 2 See https://www.bop.gov/inmateloc/ (search by BOP Register Number 18658- 023) (last accessed Dec. 23, 2024). 1 machinery can[]not perform in the usual manner its impartial task of adjudging cases that 2 are presented for adjudication.” Appling, 340 F.3d at 780 (alteration in original) (quoting 3 In re Levander, 180 F.3d at 1119). A finding of fraud on the court “must involve an 4 unconscionable plan or scheme which is designed to improperly influence the court in its 5 decision.” Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995) 6 (quoting Abatti, 859 F.2d at 118); see also Appling, 340 F.3d at 780 (“Fraud on the court 7 requires a ‘grave miscarriage of justice,’ and a fraud that is aimed at the court.” (internal 8 citation omitted) (quoting Beggerly, 524 U.S. at 47)). 9 “In determining whether fraud constitutes fraud on the court, the relevant inquiry is 10 not whether fraudulent conduct ‘prejudiced the opposing party,’ but whether it ‘harm[ed] 11 the integrity of the judicial process.’” United States v. Est. of Stonehill, 660 F.3d 415, 444 12 (9th Cir. 2011) (alteration in original) (quoting Alexander v. Robertson, 882 F.2d 421, 424 13 (9th Cir. 1989)). “Fraud on the court involves ‘far more than an injury to a single litigant.’” 14 Id. (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944)). 15 Although “one of the concerns underlying the ‘fraud on the court’ exception is that such 16 fraud prevents the opposing party from fully and fairly presenting his case,” this showing 17 alone is not sufficient. United States v. Sierra Pac. Indus., 100 F. Supp. 3d 948, 955 (E.D. 18 Cal. 2015) (citation omitted); see also Abatti, 859 F.2d at 118 (“[W]e have said that it may 19 occur when the acts of a party prevent his adversary from fully and fairly presenting his 20 case or defense. . . . Fraud on the court must involve ‘an unconscionable plan or scheme 21 which is designed to improperly influence the court in its decision.’” (quoting Toscano v. 22 Comm’r, 441 F.2d 930, 934 (9th Cir. 1971)). 23 “Non-disclosure, or perjury by a party or witness, does not, by itself, amount to 24 fraud on the court.” Appling, 340 F.3d at 780; accord In re Levander, 180 F.3d at 1119 25 (“Generally, non-disclosure by itself does not constitute fraud on the court. . . . Similarly, 26 perjury by a party or witness, by itself, is not normally fraud on the court.”). 27 Plaintiff has presented no evidence to support her claim Defendants committed 28 fraud upon the Court within the meaning of Rule 60(d). She claims “Defendants, their 1 agents, witnesses, or other Declarants lied under penalty of perjury, with intent to deceive 2 the Court, and did deceive the Court, as officers of the Court.” Even if Plaintiff could 3 prove her allegations, perjury, standing alone, does not amount to fraud on the Court. The 4 Court will therefore deny this portion of her Motion for Reconsideration. 5 4. 28 U.S.C. §§ 144 and 455 6 As noted, Plaintiff asserts the Court should reopen this case pursuant to 28 U.S.C. 7 §§ 144 and 455 based on the Court’s purported bias against Plaintiff. Section 144 provides, 8 “Whenever a party to any proceeding in a district court makes and files a timely and 9 sufficient affidavit that the judge before whom the matter is pending has a personal bias or 10 prejudice either against him or in favor of any adverse party, such judge shall proceed no 11 further therein, but another judge shall be assigned to hear such proceeding.” Plaintiff 12 never filed a timely and sufficient affidavit averring the undersigned has a personal bias or 13 prejudice against Plaintiff or in favor of Defendants. There is no basis to reopen this case 14 under § 144. 15 Section 455 provides, “Any justice, judge, or magistrate judge of the United States 16 shall disqualify himself in any proceeding in which his impartiality might reasonably be 17 questioned.” 28 U.S.C. § 455(a). In addition, a judge shall disqualify himself “[w]here he 18 has a personal bias or prejudice concerning a party, or personal knowledge of disputed 19 evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b). Plaintiff never sought 20 recusal of the undersigned, and her attempt to do so after Judgment has been entered is 21 improper. The Court will therefore deny Plaintiff’s Motion to the extent she asks the Court 22 to reopen this case pursuant to 28 U.S.C. §§ 144 and 455. 23 5. Injunctive Relief 24 Plaintiff seeks injunctive relief pursuant to Federal Rule of Civil Procedure 65 for 25 purported ongoing constitutional violations. (Doc. 106 at 3–4.) Specifically, Plaintiff 26 requests an order enjoining further psychological, emotional, physical, sexual, or other 27 constitutional harms against her; requiring her immediate placement in a “female facility” 28 and placing Defendants “on notice to be PREA compliant”; requiring Defendants to 1 immediately provide her all of her gender correction surgeries, including laser hair 2 removal, vaginoplasty, labiaplasty, facial feminization surgery, and throat shaving; 3 requiring Defendants to use female-only visual and pat searches and escorts, “keep[ing] 4 her away from all male inmates and staff,” and using electronic body scanning technology 5 instead of such searches; enjoining Defendants from delaying, denying, or interfering with 6 her medical treatment; requiring Defendants to restore her 200-miligram daily dose of 7 micronized progesterone, oxycodone, and valium; requiring Defendants to protect her from 8 further rape, sexual or physical assault, and sexual harassment, to use her female name and 9 pronouns, and to change her gender marker to “F” for female or “X” for intersex, or both. 10 (Id. at 11–12.) Plaintiff contends an injunction to prevent further harm is mandatory in 11 these circumstances because Defendants “continue to do irreparable harm[] upon [her].” 12 (Id. at 6.) Plaintiff asserts she meets all the Winter factors. (Id. at 5–10.) See Winter v. 13 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (To obtain a preliminary injunction, the 14 moving party must show she “is likely to succeed on the merits,” she “is likely to suffer 15 irreparable harm in the absence of preliminary relief,” “the balance of equities tips in [her] 16 favor,” and “an injunction is in the public interest.”). 17 As discussed above, on March 1, 2023, the Court denied Plaintiff’s motions seeking 18 the same injunctive relief she seeks now on reconsideration. (Doc. 71.) Plaintiff could 19 have, but did not, seek reconsideration of the Court’s denial of her motions for injunctive 20 relief, and she offers no reason for waiting nearly a year and a half after Judgment was 21 entered to seek reconsideration. The Court declines to revisit its previous decision. 22 Moreover, with respect to Plaintiff’s allegations regarding her medical care, the Court 23 dismissed Plaintiff’s medical care claims on screening; the Court therefore could not have 24 granted any injunctive relief with respect to her medical care. See De Beers Consol. Mines 25 v. United States., 325 U.S. 212, 220 (1945) (an injunction or restraining order is appropriate 26 to grant “intermediate relief of the same character as that which may be granted finally,” 27 but relief is not proper when it is requested on matters lying wholly outside the issues in 28 1 the suit). (Doc. 15 at 5.) The Court will deny Plaintiff’s request for injunctive relief under 2 Rule 65. 3 6. Denial of Supplemental Motion 4 Finally, Plaintiff asserts the Court erred in dismissing her “supplemental motion” 5 pursuant to Rule 15(d). (Doc. 106 at 11.) She contends the Court misconstrued the 6 supplemental motion due to Defendants’ misrepresentations, thereby denying her due 7 process. (Id.) Plaintiff also argues the Court abused its discretion because it “ignored” the 8 Federal Tort Claims Act violations and Defendants’ fraud upon the Court. (Id.) 9 On February 28, 2023, Plaintiff filed a Motion for Leave to Amend Complaint (Doc. 10 69) and lodged a proposed Emergency Second Amended Complaint. Plaintiff did not 11 specify she was seeking to file a supplemental pleading rather than an amended pleading. 12 See Fed. R. Civ. P. 15(a) (amendments before trial); Fed. R. Civ. P. 15(d) (supplemental 13 pleadings). On June 20, 2023, the Court denied Plaintiff’s Motion because she had lodged 14 the proposed Second Amended Complaint without the redlining required under the Local 15 Rules of Civil Procedure; added at least twelve new parties and dropped four counts; 16 apparently attempted to merge some counts from the First Amended Complaint and add 17 new claims not included in the First Amended Complaint; added allegations and claims 18 regarding events that had occurred at FCI-Florence; and added claims predating the First 19 Amended Complaint. (Doc. 84.) The Court determined the Motion did not comply with 20 Rule 15.1 of the Local Rules of Civil Procedure because Plaintiff had failed to show “in 21 what respect [the proposed SAC] differ[ed] from the pleading which it amend[ed].” (Id.) 22 Plaintiff did not file a motion for reconsideration of the Court’s Order. 23 Plaintiff’s request for reconsideration of an Order entered more than a year and a 24 half ago is unreasonably untimely. Plaintiff offers no reason why she could not have sought 25 reconsideration earlier. In any event, the Court did not err in denying Plaintiff’s Motion. 26 See Yakama Indian Nation v. Wash. Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999) 27 (setting forth standard of review and explaining denial of leave to amend is warranted if 28 amendment “would cause prejudice to the opposing party . . . or creates undue delay”); 1 Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (a district court’s discretion 2 to deny leave to amend is “particularly broad” where it has previously granted leave to 3 amend); see also Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 4 1997) (a supplemental pleading under Rule 15(d) “cannot be used to introduce a separate, 5 distinct and new cause of action” (citation and internal quotation marks omitted)). 6 For the foregoing reasons, Plaintiff’s Motion for Reconsideration will be denied. 7 III. Motion to Seal 8 In Plaintiff’s Motion to Seal, filed while she was in custody at FCI-Fairton, Plaintiff 9 asks the Court to seal “the entire record” because she has been sexually and physically 10 assaulted “due to the findings of the Court” in her criminal proceedings; Defendants 11 previously moved to seal information threatening the safety, security, and orderly 12 administration of the BOP, its prisoners, and Plaintiff in particular; and prisoners at FCI- 13 Fairton are now threatening Plaintiff and “telling other inmates to pull this case” and 14 another one of Plaintiff’s cases that was sealed in North Dakota at the request of the United 15 States Attorney “to read what it says about Plaintiff’s criminal charge.” (Doc. 111 at 1.) 16 Plaintiff alleges Defendant Christiansen and other Defendants informed prisoners of 17 “sealed information to incite sexual and physical assault upon Plaintiff.” (Id.) She claims 18 prisoners are “threatening to stab her and kill her due to this information on TRULINCS 19 and pacer.gov,” and as result, she is now in the Special Housing Unit (SHU) under 20 “elevated protective custody” status. (Id. at 2.) Plaintiff identifies one prisoner whom she 21 alleges attempted to sexually abuse her in her cell and is now in the SHU “telling all 22 inmates to beat, rape, and kill Plaintiff, and telling them to look up this instant case . . . to 23 incite them to do this harm to Plaintiff.” (Id.) 24 The public has a right to inspect judicial documents and records. Nixon v. Warner 25 Commc’ns, Inc., 435 U.S. 589, 597 (1978). Although this right is not absolute, there is a 26 strong presumption in favor of access to judicial records. A party seeking to seal a judicial 27 record bears the burden of overcoming this presumption by either meeting the “compelling 28 reasons” standard if the record is a dispositive pleading or the “good cause” standard if the 1 record is a non-dispositive pleading. Kamakana v. City & County of Honolulu, 447 F.3d 2 1172, 1180 (9th Cir. 2006). Moreover, the policy of promoting access to public documents 3 dictates that only information for which there is good cause or compelling reasons to seal 4 should be sealed. Accordingly, to the extent a party wishes to seal an entire document, 5 rather than to redact certain information from that document, the party must provide either 6 good cause or compelling reasons to seal all the information in that document. See id. at 7 1183. Otherwise, the party must only seek to redact information for which there is good 8 cause or compelling reasons to seal. 9 Plaintiff’s statements in the Motion do not warrant sealing the entire case. First, as 10 noted above, Plaintiff has been moved to the Minneapolis RRC, and her allegations 11 regarding her safety at FCI-Fairton are no longer relevant. Second, to the extent Plaintiff 12 asserts her criminal case in North Dakota was sealed, it appears certain documents in her 13 criminal case were sealed, but the entire case was not. The district court’s decision in 14 Plaintiff’s criminal case to seal certain documents does not bear on this Court’s decision to 15 seal the entirety of this civil rights case. Third, Plaintiff asserts the Court previously sealed 16 certain information in this case at Defendants’ request, but, in those instances, Defendants 17 sought to seal specific attachments to exhibits filed in response to Plaintiff’s Motions for 18 Temporary Restraining Orders due to the sensitive nature of their content and the harm this 19 content could potentially pose to Plaintiff and other prisoners if made public. (Docs. 40, 20 59.) Plaintiff has not shown good cause or compelling reasons to seal the entirety of the 21 instant case. The Court will therefore deny Plaintiff’s Motion to Seal. 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . ITIS ORDERED: 2 (1) Plaintiff's Motion for Reconsideration (Doc. 106) is denied. 3 (2) Plaintiff's Motion to Seal (Doc. 111) is denied. 4 (3) This case must remain closed. 5 Dated this 23rd day of December, 2024. 6 7 { feel 9 Honorable Scott H. Rash United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15-