1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN GOODLOW, Case No.: 3:18-cv-0709-CAB-MDD
Plaintiff, 13 vs. ORDER DENYING MOTION TO 14 ALTER OR AMEND JUDGMENT
15 PURSUANT TO Fed. R. Civ. P. 59(e) CAMACHO, Correctional Officer; Mr. 16 SAGALAS, Correctional Officer; Mr. (ECF No. 98) 17 SALAS, Correctional Officer; Mrs. Sgt. GONZALEZ, Correctional Sergeant; Ms. 18 KELLY, Registered Nurse; Mr. MARIN, 19 Correctional Officer; Ms. Sgt. KEENER, Correctional Officer; Dr. GOYAL, 20 Facility Dr.; Mr. HERNANDEZ, 21 Correctional Officer; B. SELF, Appeals Coordinator CCII; Sgt. Mrs. SMITH, EOP 22 Sgt 23 Defendants. 24 25 26 Ivan Goodlow, (“Plaintiff”) proceeding pro se and in forma pauperis (“IFP”), has 27 filed a Motion to Alter or Amend the Judgment” pursuant to Federal Rules of Civil 28 Procedure 59(e). (ECF No. 98.) 1 I. Procedural History 2 On April 9, 2018, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983, 3 alleging eleven individuals,1 including correctional officers and other staff at R.J. 4 Donovan Correctional Facility (RJD), violated his civil rights by: (1) using excessive 5 force against him, in violation of his Eight Amendment rights, (2) retaliating against him, 6 in violation of his First Amendment rights, (3) depriving him of a meal in violation his 7 Eighth Amendment rights and (4) filing a false disciplinary report, in violation of his 8 rights under the Eighth, Ninth and Fourteenth Amendment. (See Compl., ECF No. 1 at 5– 9 13.) 10 Plaintiff’s Eighth and Fourteenth Amendment claims against Sergeant Keener were 11 dismissed for failing to state a claim; ultimately, without leave to amend. (See ECF No. 12 45, Order Adopting Report and Recommendation Granting Defendants’ partial Motion to 13 Dismiss; ECF No. 54, Order Denying Motion to Amend Fourteenth Amendment claim 14 and Ordering Case to Proceed.) Defendants Gonzalez, Kelly, Goyal, and Hernandez were 15 dismissed because they were never properly served. (See ECF No. 54. at 2.) 16 In addition, Defendants Camacho, Salas, Sigala and Marin filed a motion for 17 summary judgment as to the claims against them, arguing that Plaintiff had failed to 18 properly exhaust his administrative grievances pursuant to 42 U.S.C. § 1997e(a) prior to 19 filing the Complaint. (See ECF No. 69.) On September 24, 2020, this Court granted 20 Defendants Camacho, Salas, Sigala and Marin’s motion for summary judgment, 21 concluding that Plaintiff had exhausted his claims against Defendants only after he filed 22 his action in federal court. (ECF No. 95 at 29–30.) In its Order, however, the Court 23 / / / 24 25 26 1 In his Complaint, Goodlow named the following eleven defendants: Camacho, Salas, 27 Sagalas, Gonzalez, Kelly, Marin, Keener, Goyal, Hernandez, Self, and Smith. (See Compl., ECF No. 1 at 2–4.) Ultimately, Plaintiff was only able to serve Camacho, Salas, 28 1 notified Plaintiff he was free to “bring these now exhausted claims in a new and separate 2 civil action so long as he does so within the applicable statute of limitations.” (Id. at 30.) 3 On October 13, 2020, Plaintiff filed the instant Motion to Alter or Amend a 4 Judgment pursuant to Federal Rules of Civil Procedure 59(e). (ECF No. 98.) 5 II. Plaintiff’s Motion to Alter or Amend Judgment 6 A. Standard of Review 7 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with 8 newly discovered evidence, (2) the district court committed clear error or made an initial 9 decision that was manifestly unjust, or (3) there is an intervening change in controlling 10 law.’” Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. 11 City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a 12 substantive change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th 13 Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 14 1983)), and “is an extraordinary remedy which should be used sparingly.” McDowell v. 15 Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to 16 “‘relitigate old matters, or to raise arguments or present evidence that could have been 17 raised prior to the entry of judgment.’” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 18 2d 1112, 1117 (D. Nev. 2013) (quoting 11 Charles Alan Wright et al., Federal Practice 19 and Procedure § 2810.1 (2d ed. 1995)). 20 B. Discussion 21 In his Motion, Plaintiff requests the Court reconsider its order granting summary 22 judgment based on Plaintiff’s failure to exhaust administrative remedies prior to filing his 23 Complaint. (See Pl.’s Mot., ECF No. 98, 1–2.) Plaintiff’s Motion does not seek 24 reconsideration based on newly discovered evidence or any intervening change in 25 controlling law. See Ybarra, 656 F.3d at 998. Instead, Plaintiff appears to seek 26 reconsideration on the grounds that he should be excused for failing to complete the 27 administrative appeal process prior to filing his Complaint because he feared retaliation 28 from correctional officers if he waited. (See Pl.’s Mot., ECF No. 98 at 2.) The Court 1 addressed this very argument in its Order granting summary judgment. (See Order, ECF 2 No. 95 at 22–24.) “A motion for reconsideration may not be used to get a second bite at 3 the apple.” Campion v. Old Repub. Home Protection Co., Inc., No. 09-cv-00748- 4 JMA(NLS), 2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011). The purpose of Rule 5 59(e) is not to “give an unhappy litigant one additional chance to sway the judge. 6 [A]rguments and evidence [that] were previously carefully considered by the Court, [ ] do 7 not provide a basis for amending the judgment,” Kilgore v. Colvin, No. 2:12-cv-1792- 8 CKD, 2013 WL 5425313 at *1 (E.D. Cal. Sept. 27, 2013) (internal quotations omitted), 9 and “[m]ere doubt[] or disagreement about the wisdom of a prior decision” is insufficient 10 to warrant granting a Rule 59(e) motion. Campion, 2011 WL 1935967 at *1 (quoting 11 Hopwood v. Texas, 236 F.3d 256, 273 (5th Cir. 2000)). For a decision to be considered 12 “clearly erroneous” it must be “more than just maybe or probably wrong; it must be dead 13 wrong.” Id. A “movant must demonstrate a ‘wholesale disregard, misapplication, or 14 failure to recognize controlling precedent.’” Id. (quoting Oto v. Metro. Life Ins. Co., 224 15 F.3d 601, 606 (7th Cir. 2000)); see also Garcia v. Biter, No. 1:13-CV-00599-LJO-SKO- 16 PC, 2016 WL 3879251, at *2 (E.D. Cal. July 18, 2016). Plaintiff has not done so here. 17 Furthermore, as discussed above, in its Order Granting Summary Judgment, the 18 Court notified Plaintiff that although his previously unexhausted claims were dismissed 19 without prejudice, he “may bring these now exhausted claims in a new and separate civil 20 action so long as he does so within the applicable statute of limitations.” (Id. at 30.) 21 Plaintiff has indeed done just that. On October 15, 2020, Plaintiff filed a Complaint 22 pursuant to 42 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN GOODLOW, Case No.: 3:18-cv-0709-CAB-MDD
Plaintiff, 13 vs. ORDER DENYING MOTION TO 14 ALTER OR AMEND JUDGMENT
15 PURSUANT TO Fed. R. Civ. P. 59(e) CAMACHO, Correctional Officer; Mr. 16 SAGALAS, Correctional Officer; Mr. (ECF No. 98) 17 SALAS, Correctional Officer; Mrs. Sgt. GONZALEZ, Correctional Sergeant; Ms. 18 KELLY, Registered Nurse; Mr. MARIN, 19 Correctional Officer; Ms. Sgt. KEENER, Correctional Officer; Dr. GOYAL, 20 Facility Dr.; Mr. HERNANDEZ, 21 Correctional Officer; B. SELF, Appeals Coordinator CCII; Sgt. Mrs. SMITH, EOP 22 Sgt 23 Defendants. 24 25 26 Ivan Goodlow, (“Plaintiff”) proceeding pro se and in forma pauperis (“IFP”), has 27 filed a Motion to Alter or Amend the Judgment” pursuant to Federal Rules of Civil 28 Procedure 59(e). (ECF No. 98.) 1 I. Procedural History 2 On April 9, 2018, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983, 3 alleging eleven individuals,1 including correctional officers and other staff at R.J. 4 Donovan Correctional Facility (RJD), violated his civil rights by: (1) using excessive 5 force against him, in violation of his Eight Amendment rights, (2) retaliating against him, 6 in violation of his First Amendment rights, (3) depriving him of a meal in violation his 7 Eighth Amendment rights and (4) filing a false disciplinary report, in violation of his 8 rights under the Eighth, Ninth and Fourteenth Amendment. (See Compl., ECF No. 1 at 5– 9 13.) 10 Plaintiff’s Eighth and Fourteenth Amendment claims against Sergeant Keener were 11 dismissed for failing to state a claim; ultimately, without leave to amend. (See ECF No. 12 45, Order Adopting Report and Recommendation Granting Defendants’ partial Motion to 13 Dismiss; ECF No. 54, Order Denying Motion to Amend Fourteenth Amendment claim 14 and Ordering Case to Proceed.) Defendants Gonzalez, Kelly, Goyal, and Hernandez were 15 dismissed because they were never properly served. (See ECF No. 54. at 2.) 16 In addition, Defendants Camacho, Salas, Sigala and Marin filed a motion for 17 summary judgment as to the claims against them, arguing that Plaintiff had failed to 18 properly exhaust his administrative grievances pursuant to 42 U.S.C. § 1997e(a) prior to 19 filing the Complaint. (See ECF No. 69.) On September 24, 2020, this Court granted 20 Defendants Camacho, Salas, Sigala and Marin’s motion for summary judgment, 21 concluding that Plaintiff had exhausted his claims against Defendants only after he filed 22 his action in federal court. (ECF No. 95 at 29–30.) In its Order, however, the Court 23 / / / 24 25 26 1 In his Complaint, Goodlow named the following eleven defendants: Camacho, Salas, 27 Sagalas, Gonzalez, Kelly, Marin, Keener, Goyal, Hernandez, Self, and Smith. (See Compl., ECF No. 1 at 2–4.) Ultimately, Plaintiff was only able to serve Camacho, Salas, 28 1 notified Plaintiff he was free to “bring these now exhausted claims in a new and separate 2 civil action so long as he does so within the applicable statute of limitations.” (Id. at 30.) 3 On October 13, 2020, Plaintiff filed the instant Motion to Alter or Amend a 4 Judgment pursuant to Federal Rules of Civil Procedure 59(e). (ECF No. 98.) 5 II. Plaintiff’s Motion to Alter or Amend Judgment 6 A. Standard of Review 7 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with 8 newly discovered evidence, (2) the district court committed clear error or made an initial 9 decision that was manifestly unjust, or (3) there is an intervening change in controlling 10 law.’” Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. 11 City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a 12 substantive change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th 13 Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 14 1983)), and “is an extraordinary remedy which should be used sparingly.” McDowell v. 15 Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to 16 “‘relitigate old matters, or to raise arguments or present evidence that could have been 17 raised prior to the entry of judgment.’” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 18 2d 1112, 1117 (D. Nev. 2013) (quoting 11 Charles Alan Wright et al., Federal Practice 19 and Procedure § 2810.1 (2d ed. 1995)). 20 B. Discussion 21 In his Motion, Plaintiff requests the Court reconsider its order granting summary 22 judgment based on Plaintiff’s failure to exhaust administrative remedies prior to filing his 23 Complaint. (See Pl.’s Mot., ECF No. 98, 1–2.) Plaintiff’s Motion does not seek 24 reconsideration based on newly discovered evidence or any intervening change in 25 controlling law. See Ybarra, 656 F.3d at 998. Instead, Plaintiff appears to seek 26 reconsideration on the grounds that he should be excused for failing to complete the 27 administrative appeal process prior to filing his Complaint because he feared retaliation 28 from correctional officers if he waited. (See Pl.’s Mot., ECF No. 98 at 2.) The Court 1 addressed this very argument in its Order granting summary judgment. (See Order, ECF 2 No. 95 at 22–24.) “A motion for reconsideration may not be used to get a second bite at 3 the apple.” Campion v. Old Repub. Home Protection Co., Inc., No. 09-cv-00748- 4 JMA(NLS), 2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011). The purpose of Rule 5 59(e) is not to “give an unhappy litigant one additional chance to sway the judge. 6 [A]rguments and evidence [that] were previously carefully considered by the Court, [ ] do 7 not provide a basis for amending the judgment,” Kilgore v. Colvin, No. 2:12-cv-1792- 8 CKD, 2013 WL 5425313 at *1 (E.D. Cal. Sept. 27, 2013) (internal quotations omitted), 9 and “[m]ere doubt[] or disagreement about the wisdom of a prior decision” is insufficient 10 to warrant granting a Rule 59(e) motion. Campion, 2011 WL 1935967 at *1 (quoting 11 Hopwood v. Texas, 236 F.3d 256, 273 (5th Cir. 2000)). For a decision to be considered 12 “clearly erroneous” it must be “more than just maybe or probably wrong; it must be dead 13 wrong.” Id. A “movant must demonstrate a ‘wholesale disregard, misapplication, or 14 failure to recognize controlling precedent.’” Id. (quoting Oto v. Metro. Life Ins. Co., 224 15 F.3d 601, 606 (7th Cir. 2000)); see also Garcia v. Biter, No. 1:13-CV-00599-LJO-SKO- 16 PC, 2016 WL 3879251, at *2 (E.D. Cal. July 18, 2016). Plaintiff has not done so here. 17 Furthermore, as discussed above, in its Order Granting Summary Judgment, the 18 Court notified Plaintiff that although his previously unexhausted claims were dismissed 19 without prejudice, he “may bring these now exhausted claims in a new and separate civil 20 action so long as he does so within the applicable statute of limitations.” (Id. at 30.) 21 Plaintiff has indeed done just that. On October 15, 2020, Plaintiff filed a Complaint 22 pursuant to 42 U.S.C. § 1983 in a new civil action, raising the same claims against nine 23 of the same defendants named in his original complaint in this case.2 (See Goodlow v. 24 Camacho (“Goodlow II”), 3:20-cv-2038-AJB-AGS, ECF No. 1.) On October 30, 2020, 25
26 27 2 In Goodlow II, Plaintiff names Camacho, Sigala, Salas, Gonzalez, Kelly, Marin, Keener, Goyal and Hernandez. (See Goodlow II, ECF No. 1 at 2.) 28 1 United States District Judge Anthony Battaglia issued an Order directing the U.S. 2 Marshal to effect service of summons Plaintiff’s Complaint in Goodlow II, 20-cv-2038- 3 AJB-AGS, as to all Defendants, with the exception of Keener,3 on Plaintiff’s behalf. (See 4 Goodlow II, ECF No. 3 at 9–10) (citing 28 U.S.C. § 1915(d) (“The officers of the court 5 shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 6 4(c)(3) (“[T]he court may order that service be made by a United States marshal ... if the 7 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).) 8 Plaintiff’s Motion to Alter or Amend does not demonstrate that this Court 9 disregarded, misapplied, or failed to recognize any controlling precedent when it granted 10 summary judgment and dismissed the case without prejudice. Campion, 2011 WL 11 1935967 at *1 (quoting Oto, 224 F.3d at 606); see also Garcia, 2016 WL 3879251, at *2. 12 Thus, because Plaintiff has failed to offer any valid basis upon which the Court might 13 find its September 24, 2020 Order Granting Summary Judgment was erroneous or 14 manifestly unjust, relief is not warranted under Fed. R. Civ. P. 59(e). 15 / / / / / 16 / / / / / 17 / / / / / 18 / / / / / 19 / / / / / 20 / / / / / 21 / / / / / 22
23 3 Defendant Keener was dismissed because the claims had been previously litigated and 24 dismissed on the merits rather than due to a failure to exhaust. A prisoner’s complaint is 25 considered frivolous if it “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 26 1915(d)) (citations and internal quotations omitted). Therefore, the Court in Goodlow II 27 dismissed the claims against Keener as duplicative, pursuant to 28 U.S.C. § 1915(e) (2) & 1915A(b). (See Goodlow II, ECF No. 3 at 7–8, 10 (citing Cato, 70 F.3d at 1105 n.2; 28 1 Conclusion and Order 2 Based on the foregoing, the Court DENIES Plaintiff's Motion to Alter or Amend 3 || Judgment pursuant to Fed. R. Civ. P. 59(e). (ECF No. 98). 4 IT IS SO ORDERED. 5 Dated: November 19, 2020 € □ 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28