Jackson v. Covello et.al.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RICARDO JACKSON, Case No.: 3:19-cv-2444 JAH MDD CDCR #AK-4312, 11 ORDER: Plaintiff, 12 vs. (1) DENYING PLAINTIFF’S 13 MOTION FOR P. COVELLO; J. JUAREZ; SERGEANT 14 RECONSIDERATION; AND ANDERSON; CORRECTIONAL

15 OFFICER MARTINEZ; A. CANEDO; A. (2) GRANTING MOTIONS FOR TAYLOR; GARCIA; R. FLORES, 16 EXTENSION OF TIME TO FILE Defendants. FIRST AMENDED COMPLAINT 17

18 [ECF Nos. 30, 34, 36, 38] 19 20 Plaintiff Ricardo Jackson, a prisoner currently incarcerated at the California 21 Substance Abuse Treatment Facility (“CSATF”), proceeding pro se in this civil rights 22 action pursuant to 42 U.S.C. § 1983, has filed a motion seeking reconsideration of this 23 Court’s February 26, 2020 Order. See ECF No. 30. 24 In its February 26, 2020 Order, the Court granted Plaintiff leave to proceed in forma 25 pauperis, denied his request for appointment of counsel, denied his motion for preliminary 26 injunction and dismissed some of his claims pursuant to by 28 U.S.C. § 1915(e)(2) and § 27 1915A. See ECF No. 23. However, the Court found that Plaintiff had pleaded First 28 Amendment retaliation claims sufficient to withstand the sua sponte screening required by 1 28 U.S.C. § 1915(e)(2) and § 1915A as to Defendant Flores. (See id. at 11.) 2 Plaintiff was given the option to either notify the Court of his intention to proceed 3 with his First Amendment retaliation claims against Flores only or file an amended 4 pleading correcting all the deficiencies of pleading identified by the Court in the February 5 26, 2020 Order. (Id. at 12.) Instead, Plaintiff filed a Notice of Appeal to the Ninth Circuit 6 Court of Appeals of the Court’s Order. (See ECF No. 24.) However, on September 2, 7 2020, Plaintiff’s appeal was dismissed for failure to prosecute. (See ECF No. 35.) 8 Plaintiff now asks the Court to reconsider the February 26, 2020 ruling in its entirety, 9 including the rulings on Plaintiff’s IFP motion and motion to appoint counsel. See ECF 10 No. 30. Because Plaintiff fails to identify any intervening change in controlling law or 11 demonstrate that the Court committed clear error in the February 26, 2020 Order however, 12 his Motion for Reconsideration [ECF No. 30] must be DENIED. 13 I. Motion for Reconsideration 14 A. Standard of Review 15 The Federal Rules of Civil Procedure do not expressly provide for motions for 16 reconsideration. But where reconsideration of a non-final order is sought, the court has 17 “inherent jurisdiction to modify, alter or revoke it.” United States v. Martin, 226 F.3d 1042, 18 1048-49 (9th Cir. 2000). “The authority of district courts to reconsider their own orders 19 before they become final, absent some applicable rule or statute to the contrary, allows 20 them to correct not only simple mistakes, but also decisions based on shifting precedent, 21 rather than waiting for the time-consuming, costly process of appeal.” Id. at 1049. Thus, 22 S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration “[w]henever any 23 motion or any application or petition for any order or other relief has been made to any 24 judge ... has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i). However, the party 25 seeking reconsideration must show “what new or different facts and circumstances are 26 claimed to exist which did not exist, or were not shown, upon such prior application.” Id. 27 A motion for reconsideration filed pursuant to a Local Rule may also be construed 28 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 1 Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 2 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a post- 3 judgment motion will be considered a Rule 59(e) motion where it involves ‘reconsideration 4 of matters properly encompassed in a decision on the merits.’” 489 U.S. at 174 (quoting 5 White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 (1982)). A district 6 court may grant a Rule 59(e) motion if it “‘is presented with newly discovered evidence, 7 committed clear error, or if there is an intervening change in the controlling law.’” Wood 8 v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell v. Calderon, 197 F.3d 1253, 9 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 10 665 (9th Cir. 1999)). 11 B. Discussion 12 Plaintiff argues in his motion that: (1) the Court’s IFP ruling is “in excess of its 13 jurisdiction and/or theft by trickery;” (2) the denial of his motion to appoint counsel is a 14 “miscarriage of justice;” (3) there was a “denial of a fair proceeding” when the Court 15 dismissed claims from this action for failing to state a claim. (Pl.’s Mot, ECF No. 30 at 1- 16 4.) 17 1. IFP Motion 18 Plaintiff’s objection to the ruling by the Court on his IFP Motion is not entirely clear. 19 In the February 26, 2020, the Court informed Plaintiff that the IFP statute “requires 20 prisoners seeking leave to proceed IFP to submit a ‘certified copy of the trust fund account 21 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 22 the filing of the complaint.’” See Feb. 26, 2020 Order at 2 citing 28 U.S.C. § 1915(a)(2); 23 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). “From the certified trust account 24 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 25 in the account for the past six months, or (b) the average monthly balance in the account 26 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 27 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 28 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 1 any month in which his account exceeds $10, and forwards those payments to the Court 2 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).” Id. at 2-3. 3 Plaintiff argues in his Motion that his trust account statements “show that from 4 (2012) no money has been deposited into [Plaintiff’s] account.” (Pl.’s Mot. at 2.) The IFP 5 statute does require the “court shall assess and, when funds exist, collect, as a partial 6 payment of any court fees required by law, an initial partial filing fee.” 28 U.S.C. 7 § 1915(b)(1) (emphasis added). The Court did, in fact, review Plaintiff’s trust account 8 statement and found that “Plaintiff has had no monthly deposits to his account, has carried 9 no balance over the six month period preceding the filing of his Complaint, and that his 10 currently available balance is zero.” (Feb. 26, 2020 Order at 3.) For that reason, the Court 11 declined to “exact” any partial filing fee because his “trust account statement shows he has 12 no means to pay it.” (Id. citing Bruce v. Samuels, __ U.S. __, 136 S.Ct. 627, 629 (2016). 13 Moreover, the Court directed the Secretary of the California Department of Corrections 14 and Rehabilitation (“CDCR”) to only garnish “twenty percent (20%)” of Plaintiff’s 15 “preceding month’s income” only when “the amount in [Plaintiff’s trust account] exceeds 16 $10 pursuant to 28 U.S.C. § 1915(b)(2).” (Feb. 26, 2020 Order at 13.) 17 It is simply not clear the basis of Plaintiff’s objection to this Order. Plaintiff has not 18 had any funds garnished to date in payment of the filing fee owed in this matter. Thus, 19 Plaintiff’s Motion to Reconsider the Court’s Order ruling on his IFP Motion is DENIED. 20 2. Motion to Appoint Counsel 21 Plaintiff also objects to the Court’s Order denying his Motion seeking appointment 22 of counsel. (Pl.’s Mot. at 3-5.) In the Court’s February 26, 2020 Order, the Court found 23 that the “pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be 24 trained in law, he is capable of legibly articulating the facts and circumstances relevant to 25 his claims, which are typical, straightforward, and not legally ‘complex.’” (Feb. 26, 2020 26 Order at 3 citing Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).) 27 “Therefore, neither the interests of justice nor any exceptional circumstances warrant the 28 appointment of counsel in this case at this time.” (Id. citing LaMere v. Risley, 827 F.2d 1 622, 626 (9th Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).) 2 Plaintiff argues this ruling was a “denial of due process by the Court and denial of 3 access to the Court, which is also a denial of access to the Court.” (Pl.’s Mot. at 4.) None 4 of these reasons warrant reconsideration of the Court’s February 26, 2020 Order denying 5 appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), however. Specifically, the 6 Court has already found some of Plaintiff’s claims sufficient to withstand the initial 7 screening required by 28 U.S.C. § 1915(e)(2) and § 1915A. See Feb. 26, 2020 Order at 11- 8 12. The Court also informed Plaintiff of the deficiencies in his pleading as to all his other 9 claims and provided him the opportunity to file an amended complaint to correct these 10 deficiencies. See id. at 14. The Court further determined he is capable of “articulating the 11 facts and circumstances relevant to his claims.” Id. at 4. Plaintiff points to no new evidence 12 not previously considered, no clear error in the Court’s analysis, and no change in the 13 controlling law governing the appointment of counsel in civil cases. See Wood, 759 F.3d 14 at 1121. 15 3. Plaintiff’s Complaint 16 As stated above, the Court’s February 26, 2020 Order found that Plaintiff failed to 17 state a claim against any named Defendant with the exception of his First Amendment 18 retaliation claim against Defendant Flores. (Feb. 26, 2020 Order at 13-14.) Plaintiff 19 argues that the Court should examine “all exhibits attached to original Complaint” in order 20 to find that he has alleged sufficient facts upon which to state a claim. (Id. at 10.) However, 21 “[w]hile ‘much liberality is allowed in construing pro se complaints, a pro se litigant cannot 22 simply dump a stack of exhibits on the court and expect the court to sift through them to 23 determine if some nugget is buried somewhere in that mountain of papers, waiting to be 24 unearthed and refined into a cognizable claim.’” Thomas v. Donovan, No. 3:19-CV-02181- 25 JAH-RBB, 2020 WL 5106663, at *5 (S.D. Cal. Aug. 28, 2020) (quoting Samtani v. City 26 of Laredo, 274 F. Supp. 3d 695, at *2 (S.D. Texas 2017)). “The Court will not comb 27 through attached exhibits seeking to determine whether a claim possibly could have been 28 stated where the pleading itself does not state a claim. In short, [Plaintiff] must state a 1 claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL 2 588485, at *2 (D. Nev. Feb. 9, 2011). 3 The remainder of Plaintiff’s Motion adds a variety of additional facts that are not 4 contained in his Complaint to support his argument that he has stated a claim against all 5 the named Defendants. The Court cannot reconsider a ruling based on facts that were not 6 before the Court. He then requests that the Court “vacate the dismissal judgment and 7 reopen the case.” (Pl.’s Mot. at 18.) Plaintiff is not correct with regard to the procedural 8 status of this case. The Court has not entered judgment as to any Defendant in this matter. 9 Plaintiff, in fact, has been given the opportunity to file an amended complaint in order to 10 correct the problems with his pleading identified in the Court’s February 26, 2020 Order. 11 (See Feb. 26, 2020 Order at 14.) Moreover, Plaintiff has filed two pending motions seeking 12 an extension of time to file an amended complaint. 13 “Although Rule 59(e) permits a district court to reconsider and amend a previous 14 order, the rule offers an extraordinary remedy, to be used sparingly in the interests of 15 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 16 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). Motions for 17 reconsideration, like the one Plaintiff has filed in this case, do not offer parties a “second 18 bite at the apple,” Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir. 2001), and may not 19 “be used to ask the Court to rethink what it has already thought.” United States v. 20 Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998). Plaintiff disagrees with the Court’s 21 assessment as to whether his case states a claim against each Defendant. But ultimately, 22 as the party seeking reconsideration, he must do “more than disagree[] with the Court’s 23 decision,” or offer a “recapitulation of the cases and arguments considered by the court 24 before rendering its original decision.” United States v. Westlands Water Dist., 134 F. 25 Supp. 2d 1111, 1131 (E.D. Cal. 2001). 26 For all the above reasons, the Court DENIES Plaintiff’s Motion for Reconsideration 27 but will GRANT him additional time to file a First Amended Complaint. 28 II. Conclusion and Order 1 For the reasons discussed, the Court: 2 (1) DENIES Plaintiff's Motion for Reconsideration (ECF No. 30); 3 (2) GRANTS Plaintiff’s Motions for Extension of Time to file an amended 4 || pleading (ECF Nos. 34, 36, 38); and 5 (3) GRANTS Plaintiff sixty (60) days leave from the date of this Order in which 6 || to file an Amended Complaint which cures the deficiencies of pleading noted in the Court’s 7 ||February 26, 2020 Order. Plaintiff's Amended Complaint must be complete by itself 8 || without reference to his original pleading. Defendants not named and any claim not re- 9 || alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 10 || Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 11 ||(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 12 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 13 ||re-alleged in an amended pleading may be “considered waived if not repled.”’). 14 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 15 |} will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 16 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 17 || 1915A(b), and his failure to prosecute in compliance with a court order requiring 18 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 19 || not take advantage of the opportunity to fix his complaint, a district court may convert the 20 || dismissal of the complaint into dismissal of the entire action.”). 21 (4) DIRECTS the Clerk of Court to mail Plaintiff a blank copy of the Court’s 22 ||approved form complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in 23 amending. 24 IT IS SO ORDERED. 25 6 || Dated: November 9, 2020 Hgn. John A. Houston Jnited States District Judge 28 7