Johnson v. Kijakazi

• Court: District Court, S.D. California
• Decided: October 16, 2023
• Docket: 3:23-cv-00481
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES JOHNSON, Case No.: 23-CV-481 JLS (AHG)

12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 KILOLO KIJAKAZI, Acting MOTION TO RECONSIDER AND Commissioner, Social Security 15 MODIFY JUDGMENT FOR Administration; and DOES 1 to 100, PLAINTIFF’S REQUEST FOR 16 Defendants. APPOINTMENT OF COUNSEL 17 (ECF No. 34);

18 (2) CONSTRUING PLAINTIFF’S 19 MOTION TO RECONSIDER AND MODIFY JUDGMENT FOR 20 PLAINTIFF’S EX PARTE MOTION 21 FOR ELECTRONIC ACCESS, EMAIL NOTICING, AND PACER 22 FEE WAIVER AS A MOTION FOR 23 EXTENSION OF TIME AND GRANTING SAME (ECF No. 36) 24

25 (3) DENYING PLAINTIFF’S MOTION TO RECONSIDER AND 26 MODIFY JUDGMENT FOR 27 PLAINTIFF’S EX PARTE MOTION 28 1 FNOo.R 3 7E)N; ATNRDY OF DEFAULT (ECF 2

3 (4) DENYING PLAINTIFF’S MOTION TO RECONSIDER AND 4 MODIFY JUDGMENT FOR 5 PLAINTIFF’S 1ST AMENDED COMPLAINT (ECF No. 38) 6

7 Presently before the Court are Plaintiff James Johnson’s Motions to Reconsider and 8 Modify Judgment regarding (1) the Court’s dismissal of Plaintiff’s First Amended 9 Complaint (“Dismissal Recons. Mot.,” ECF No. 38); (2) Plaintiff’s Request for 10 Appointment of Counsel (“Counsel Recons. Mot.,” ECF No. 34); (3) Plaintiff’s Ex Parte 11 Motion for Electronic Access, Email Noticing, and PACER Fee Waiver, which the Court 12 liberally construes as a motion for clarification and an extension of time regarding e-filling 13 (“E-File Mot.” ECF No. 36); and (4) Plaintiff’s Ex Parte Motion for Entry of Default 14 (“Default Recons. Mot.,” ECF No. 37) (collectively, “Pl.’s Mots. for Recons.”). 15 Having carefully considered Plaintiff’s Motions for Reconsideration, his arguments, 16 and the applicable law, the Court DENIES Plaintiff’s Dismissal Reconsideration Motion, 17 DENIES Plaintiff’s Counsel Reconsideration Motion, GRANTS Plaintiff’s request for an 18 extension of time to register for electronic filing, CLARIFIES the Court’s prior Order 19 regarding Plaintiff’s exemption from PACER-related fees, and DENIES Plaintiff’s Default 20 Reconsideration Motion. The Court’s reasoning is set forth below. 21 BACKGROUND 22 The Court incorporates the thorough recitation of this action’s factual and procedural 23 background provided in its September 7, 2023 Order (the “Order,” ECF No. 32) at 16–18, 24 and thus sets forth below only those facts relevant to the instant Motions. 25 Plaintiff, proceeding pro se, initiated this action against Defendant Kilolo Kijakazi, 26 Acting Commissioner of the Social Security Administration (“SSA”), on March 16, 2023. 27 See ECF No. 1. Plaintiff also moved for leave to proceed in forma pauperis (“IFP”) and 28 for the appointment of counsel the same day. See ECF Nos. 2, 3. Though Plaintiff styled 1 his suit as a Social Security matter brought pursuant to 42 U.S.C. § 405(g) (“§ 405(g)”), he 2 also asserted several additional causes of action. See ECF Nos. 1, 1-2. Plaintiff then filed 3 additional motions, including an ex parte request for electronic filing and PACER access 4 (ECF No. 13) and an ex parte motion for entry of default (ECF No. 26). 5 On May 31, 2023, Plaintiff filed his First Amended Complaint (“FAC,” 6 ECF No. 23). Before the FAC could be screened—or the foregoing motions ruled on— 7 this case was low-numbered to the undersigned in accordance with Civil Local Rule 40.1.g 8 due to commonalities between this matter and a previously filed case, Johnson v. Saul, 20- 9 CV-747 JLS (AHG). See ECF No. 31. 10 On September 7, 2023, this Court granted Plaintiff’s Motion to Proceed IFP but 11 dismissed the FAC without prejudice pursuant to 28 U.S.C. § 1915(e)(2) for failure to 12 comply with Federal Rule of Civil Procedure 8. See generally Order. For reasons 13 summarized below, the Court also (1) denied without prejudice Plaintiff’s Request for 14 Appointment of Counsel, id. at 4–5; (2) granted Plaintiff’s Ex Parte Motion for Electronic 15 Access, id. at 9–10; and (3) denied Plaintiff’s Ex Parte Motion for Entry of Default, 16 id. at 14. 17 Plaintiff’s instant Motions for Reconsideration followed. 18 LEGAL STANDARD 19 In the Southern District of California, a party may apply for reconsideration 20 “[w]henever any motion or any application or petition for any order or other relief has been 21 made to any judge and has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i)(1). 22 The moving party must provide an affidavit setting forth, inter alia, “what new or different 23 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 24 such prior application.” Id. “In resolving motions for reconsideration, courts often look to 25 the standard for relief from final judgment set forth in Federal Rules of Civil Procedure 26 59(e) and 60(b), which apply to motions for reconsideration of final appealable orders and 27 relief from judgment.” Evanston Ins. Co. v. Venture Point, LLC, 28 No. 220CV01783KJDEJY, 2021 WL 5500486, at *1 (D. Nev. Nov. 23, 2021). 1 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 2 discovered evidence, committed clear error, or if there is an intervening change in the 3 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (emphasis omitted) 4 (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)). “A 5 motion to reconsider is not another opportunity for the losing party to make its strongest 6 case, reassert arguments, or revamp previously unmeritorious arguments.” Reeder v. 7 Knapik, No. CIV 07-CV-362-L LSP, 2007 WL 2088402, at *2 (S.D. Cal. July 18, 2007). 8 A party may thus not raise new arguments or present new evidence if it could have 9 reasonably raised them earlier. Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 10 (9th Cir. 2000) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 11 1999)). 12 Ultimately, whether to grant or deny a motion for reconsideration is in the “sound 13 discretion” of the district court. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 14 2003) (citing Kona Enters., 229 F.3d at 883). Reconsideration is an “extraordinary remedy, 15 to be used sparingly in the interests of finality and conservation of judicial resources.” 16 Kona Enters., 229 F.3d at 890 (citation omitted). So, “a court should generally leave a 17 previous decision undisturbed absent a showing that it either represented clear error or 18 would work a manifest injustice.” Hydranautics v. FilmTec Corp., 306 F.Supp.2d 958, 19 968 (S.D. Cal. 2003) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 20 817 (1988)). 21 ANALYSIS 22 I. Plaintiff’s Dismissal Reconsideration Motion 23 The Court previously dismissed Plaintiff’s FAC pursuant to 28 U.S.C. § 1915(e)(2) 24 for failure to comply with Federal Rule of Civil Procedure 8. Order at 20. The Court 25 explained that, to survive screening, the FAC must satisfy the standard set by Federal Rule 26 of Civil Procedure 12(b)(6). Id. at 15. The Court also provided a detailed summary of 27 Rule 8(a)’s “short and plain statement” requirement. See id. at 15–16. The Court then 28 found Plaintiff had not complied with Rule 8, citing such issues as the FAC’s confusing 1 and repetitive nature and its 1,148-page length. Id. at 19–20. The Court thus dismissed 2 the FAC without prejudice and gave Plaintiff sixty days to file a second amended 3 complaint. Id. at 21. 4 Though he seeks reconsideration of the FAC’s dismissal, Plaintiff raises some 5 arguments that have nothing to do with Rule 8. For example, Plaintiff contends (1) that 6 the prescreening of IFP cases violates the Fifth and Fourteenth Amendments, see 7 Dismissal Recons. Mot. at 3; and (2) that “alleged crimes are being ignored” because of 8 the Court’s prior ruling, id. at 4. Those arguments do not suggest the Court committed 9 clear error in applying Rule 8(a). Nor does Plaintiff cite any intervening changes of law or 10 provide new evidence. See generally id. The Court thus declines to reconsider its prior 11 Order on either basis. 12 Plaintiff does allege clear error elsewhere in his Motion, but to no avail. Plaintiff 13 asserts that courts “who review 405(g) disability cases are required to review the entire 14 record.” Id. at 10. So, Plaintiff argues, the Court failed to acknowledge that the FAC had 15 to be lengthy to give the Court “access to the full record.” Id. at 11. Here, Plaintiff seems 16 to have conflated the standards courts use at the beginning and the end of certain cases. 17 When a court is prepared to rule on an appeal of a disability benefits determination—i.e., 18 near the conclusion of an action brought pursuant to § 405(g)—courts do “consider the 19 entire record.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). But at the outset 20 of an action brought by a plaintiff proceeding IFP, courts screen only the complaint 21 pursuant to § 1952(e)(2). While Plaintiff’s confusion is understandable, it does not 22 constitute grounds for reconsideration. 23 The crux of Plaintiff’s remaining argument is that he cannot comply with Rule 8 24 without the help of an attorney.1 Along the same lines, Plaintiff asserts that the Court 25

26 1 There is a great deal of overlap between Plaintiff’s Dismissal Reconsideration Motion and Counsel 27 Reconsideration Motion. Indeed, some paragraphs are repeated verbatim in both Motions. The Court 28 responds more fully to Plaintiff’s argument that he cannot proceed without the appointment of counsel in 1 should be more tolerant of his pleading errors because he suffers from “medical and 2 disability issues,” Dismissal Recons. Mot. at 5, and that it is difficult to determine how 3 long a complaint ought to be, see id. at 7. Plaintiff also suggests that it would be easier for 4 the Court, rather than himself, to sift through the FAC and its exhibits to find the documents 5 most relevant to his case. See id. at 9–10. 6 The Court acknowledges—and by no means wishes to minimize—the challenges 7 Plaintiff discusses. Indeed, courts construe a pro se litigant’s pleadings liberally because 8 of the difficulty of proceeding without representation. See Karim-Panahi v. L.A. Police 9 Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 10 Pro se litigants remain, however, “bound by the rules of procedure.” Ghazali v. 11 Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citation omitted). And the Court cannot waive the 12 procedural requirements of Rule 8, “the text of [which] is framed in mandatory terms.” 13 Joseph v. City of San Jose, No. 19-CV-01294-LHK, 2019 WL 3997482, at *3 (N.D. Cal. 14 Aug. 23, 2019) (emphasis added); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 15 1996) (describing the “‘short and plain statement’ which Rule 8 obligate[s] plaintiffs to 16 submit” (emphasis added)). 17 Plaintiff presents no new evidence and cites no intervening changes in the law. Nor 18 does Plaintiff argue that the Court committed clear error in its application of Rule 8. 19 Plaintiff instead seems to ask the Court to weaken or waive Rule 8’s requirements, which 20 the Court cannot do. As none of Plaintiff’s arguments constitute proper grounds for 21 reconsideration, the Court DENIES Plaintiff’s Dismissal Reconsideration Motion. 22 II. Plaintiff’s Counsel Reconsideration Motion 23 Plaintiff previously filed a Request for Appointment of Counsel (ECF No. 3), which 24 the Court denied without prejudice. See Order at 4–5. As the Court then explained, district 25 courts have discretion to “request” that an attorney represent an indigent civil litigant only 26 in “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 27 (9th Cir. 2004) (emphasis added). The Court also explained that whether circumstances 28 are “exceptional” depends on “the likelihood of the plaintiff’s success on the merits” and 1 “the plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues 2 involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 3 Under that rubric, the Court found that Plaintiff had not shown a likelihood of success on 4 the merits—as the case was in its infancy and the FAC had been dismissed—and that the 5 legal issues presented were not particularly complex. Order at 5. 6 In seeking reconsideration, Plaintiff first argues that the Court failed to consider “key 7 facts” in assessing Plaintiff’s chances of success on the merits. See Counsel Recons. Mot. 8 at 2–3. As Plaintiff cites only documents already provided to the Court and references no 9 case law, he appears to contend that the Court committed clear error. See id. Plaintiff 10 claims that various parts of the FAC and its exhibits contain “enough facts to show that the 11 case is winnable,” and “irrefutable evidence of fraud.” Id. at 2. Given the weight of the 12 evidence the FAC presents, Plaintiff argues, “at least one” of his claims “must survive to 13 full victory verdict,” and thus the appointment of counsel is justified here. Id. at 3. 14 But the foregoing argument does not address the reasons behind the Court’s denial 15 of Plaintiff’s counsel request. In its earlier Order, the Court found Plaintiff had not shown 16 a likelihood of success on the merits because the FAC had been dismissed for failing to 17 comply with Rule 8(a)’s “short and plain statement” requirement. Order at 5, 19–20. The 18 Court’s decision was not based on the contents of any given exhibit or the nature of any 19 specific claim the FAC might raise. See id. at 4–5. The Court also explained it was too 20 early for the Court to evaluate Plaintiff’s chances of success, as Defendant had not 21 responded to the FAC. Id. at 5. Plaintiff’s first argument for reconsideration engages with 22 neither point and thus identifies no clear error. 23 Plaintiff’s remaining arguments are no more successful. He seeks reconsideration 24 on the grounds that (1) he needs legal assistance to pursue this case, see Counsel. Recons. 25 Mot. at 3–5; and (2) his “collection of disabilities makes it near [sic] impossible for [him]” 26 to comply with the Court’s standards and deadlines, see id. at 6–7. These are the same 27 arguments Plaintiff raised in his original request for the appointment of counsel, see 28 generally ECF No. 3, which the Court considered and rejected, Order at 5–6. 1 A “recapitulation of the cases and arguments considered by the court before rendering its 2 original decision” does not provide grounds for reconsideration. United States v. 3 Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (quoting Bermingham 4 v. Sony Corp. of Am., 820 F. Supp. 834, 856–57 (D.N.J. 1992), aff’d, 37 F.3d 1485 (3d Cir. 5 1994)). 6 A motion for reconsideration cannot be granted merely because Plaintiff is unhappy 7 with the judgment, frustrated by the Court’s application of the facts to binding precedent, 8 or because he disagrees with the ultimate decision. See 11 Charles Alan Wright & Arthur 9 R. Miller, Federal Practice & Procedure § 2810.1 (3d ed.). The Court therefore DENIES 10 Plaintiff’s Counsel Reconsideration Motion. 11 III. Plaintiff’s Motion for Clarification and Extension of Time2 12 Early in this action, Plaintiff filed an Ex Parte Motion for Electronic Access, Email 13 Noticing, and PACER Fee Waiver (ECF No. 13). The Court found that Plaintiff had 14 adequately represented his ability to comply with the policies, rules, and technical 15 requirements associated with e-filing and thus granted Plaintiff’s Motion. Order at 9. The 16 Court also granted Plaintiff’s request for an exemption from PACER fees. Id. at 10. In 17 accordance with local policies,3 the Court gave Plaintiff five days in which to register as a 18 user with the Clerk’s Office and as a subscriber to PACER. Id. at 9. Plaintiff now seeks 19 clarification of the Court’s prior ruling and an extension of time to register for electronic 20 access.4 See generally E-File Mot. 21

22 2 Like the other Motions addressed in this Order, Plaintiff styled this Motion as one for reconsideration. 23 But because Plaintiff does not ask the Court to rule differently on his request for electronic filing, the 24 Court exercises its discretion and construes the Motion as one for clarification and an extension of time. 3 See Office of the Clerk, United States District Court for the Southern District of California, Electronic 25 Case Filing Administrative Policies and Procedures Manual, § 2(b) (June 30, 2023), available at https://www.casd.uscourts.gov/_assets/pdf/cmecf/Electronic%20Case%20Filing%20Procedures%20Ma 26 nual.pdf. 4 Plaintiff also requests training on how to use PACER. As the Court noted in the Order, navigating 27 PACER registration and access is beyond the Court’s ken. The Court once again encourages Plaintiff to 28 contact this District’s CM/ECF Help Desk at (866) 233-7983 and the PACER Service Center at (800) 676- 1 Plaintiff asks the Court to clarify whether he may either “do case research on 2 PACER” or “print/save copies of the filings for his own records.” Id. at 2. As stated in the 3 Order, Plaintiff’s exemption from PACER-related fees is “limited to fees associated with 4 filing and accessing documents filed in this instant litigation,” and does not include 5 “payment of fees incurred in connection with the use of PACER for any other use.” Order 6 at 10 (emphasis added). So, Plaintiff is NOT EXEMPT from fees associated with “do[ing] 7 case research on PACER.” Plaintiff is also NOT EXEMPT from paying PACER fees 8 associated with printing or saving copies of filings from other cases. However, Plaintiff 9 REMAINS EXEMPT from PACER fees associated with accessing—and downloading, 10 to the extent allowed on PACER—documents filed in this action. 11 Plaintiff also seeks an extension of time in which to register as a user with the Clerk’s 12 Office and as a subscriber to PACER. E-File Mot. at 2. Plaintiff explains that he did not 13 receive a copy of the Order until eight days after it was issued, at which point his five-day 14 registration deadline had already passed. See id. 15 Federal Rule of Civil Procedure 6(b) permits a court to extend, for good cause, a 16 deadline after its expiration “if the party failed to act because of excusable neglect.” “[T]he 17 determination of whether neglect is excusable is an equitable one that depends on at least 18 four factors,” including, but not limited to, “(1) the danger of prejudice to the opposing 19 party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason 20 for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal 21 Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick 22 Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 23 Good cause appearing, the Court GRANTS Plaintiff’s request for an extension of 24 time. Plaintiff’s delay in registering with the Clerk’s Office and PACER came through no 25 fault of his own, and a short extension will not prejudice any party. Plaintiff SHALL 26 REGISTER as a user with the Clerk’s Office and as a subscriber to PACER within twenty- 27 one (21) days of the date of this Order. Once Plaintiff registers for CM/ECF and PACER, 28 he will both receive and provide service of all filings in this case electronically. 1 IV. Plaintiff’s Default Reconsideration Motion 2 Plaintiff previously filed a motion for entry of default against Defendant, see ECF 3 No. 26, which the Court denied, Order at 14. The Court explained that, as Plaintiff’s FAC 4 had not yet undergone mandatory screening, entry of default against Defendant was 5 premature. Id. at 14. The Court cited Hafer v. Comm’r of Soc. Sec., in which the court 6 recommended denial of an IFP plaintiff’s request for entry of default against the SSA 7 because the complaint had yet to be screened. No. 122CV00972JLTEPG, 8 2022 WL 17353834, at *2 (E.D. Cal. Dec. 1, 2022), report and recommendation adopted, 9 2023 WL 131397 (E.D. Cal. Jan. 9, 2023). 10 Plaintiff now seeks reconsideration and argues that the Court committed clear error. 11 Default Recons. Mot. at 6. Though sometimes difficult to follow, Plaintiff’s argument 12 appears to be based on the Federal Rules of Civil Procedure’s Supplemental Rules for 13 Social Security Actions Under 42 U.S.C. § 405(g) (the “Supplemental Rules”). 14 Specifically, Plaintiff cites Supplemental Rule 3, which explains that plaintiffs “need not 15 serve a summons and complaint under [Federal Rule of Civil Procedure] 4.” Fed. R. Civ. 16 P. Supp. Soc. Sec. R. 3. Instead, the “court must notify the Commissioner [of the SSA] of 17 the commencement of the action by transmitting a Notice of Electronic Filing to the 18 appropriate office within the [SSA].” Id. Defendant was sent such a Notice on 19 March 20, 2023. See ECF No. 8. Per Plaintiff, Defendant had sixty days from March 20, 20 2023—pursuant to Federal Rule of Civil Procedure 12(a)—in which to file an answer. See 21 Default Recons. Mot. at 6–8. According to Plaintiff, that “60-day answer clock” began 22 ticking even though the Court had yet to screen the FAC. Id. at 8. 23 The Court need not express any opinion on the meaning or effect of the 24 Supplemental Rules, as they do not apply to Plaintiff’s FAC. The Supplemental Rules 25 govern a § 405(g) action when that action “presents only an individual claim.” Fed. R. 26 Civ. P. Supp. Soc. Sec. R. 1(a). When “a claim for relief beyond review on the 27 administrative record” accompanies “a claim for review under § 405(g),” an action “fall[s] 28 outside the[] Supplemental Rules.” Id. 2022 advisory committee notes. “Such 1 || actions .. . are governed by the [Federal Rules of Civil Procedure] alone.” Jd. And here, 2 || along with his § 405(g) action, Plaintiff brings several claims for relief that go “beyond 3 ||review” of “the administrative record.” These include claims brought under the Fifth, 4 || Ninth, and Fourteenth Amendments; 42 U.S.C. § 1983; the Americans with Disabilities 5 || Act (“ADA”), 42 U.S.C. § 1201 et seg.; the Rehabilitation Act of 1973, 29 U.S.C. § 794; 6 || the Civil Rights Act of 1964, 42 U.S.C. § 2000a; the Persons with Disabilities Civil Rights 7 || Act (“PDCRA”), M.C.L. § 37.1101 et seqg.; various state laws; the Code of Federal 8 Regulations; and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). See 9 || Order at 18 (summarizing the FAC). 10 As the Supplemental Rules—on which Plaintiffs Motion heavily relies—do not 11 ||apply to the FAC, Plaintiff has not identified clear error on the part of this Court. The 12 Court thus DENIES Plaintiff's Default Reconsideration Motion. 13 CONCLUSION 14 In light of the foregoing, the Court: 15 1. DENIES Plaintiff's Dismissal Reconsideration Motion (ECF No. 38); 16 2. DENIES Plaintiff's Counsel Reconsideration Motion (ECF No. 34); 17 3. CLARIFIES that Plaintiff's exemption from fees for PACER usage, as 18 || granted by the Court in its September 7, 2023 Order, does not extend to fees associated 19 || with researching and accessing documents filed outside of this action; 20 4. GRANTS Plaintiff's request for an extension of time to register for e-filing 21 ||(ECF No. 36). Plaintiff SHALL REGISTER as a user with the Clerk’s Office and as a 22 subscriber to PACER within twenty-one (21) days of the date of this Order; 23 5. DENIES Plaintiff's Default Reconsideration Motion (ECF No. 37). 24 IT IS SO ORDERED. 25 ||Dated: October 16, 2023 (een 26 on. Janis L. Sammartino United States District Judge 27 28