Lewis v. Paramo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN DEVERICK LEWIS, Case No.: 3:22-cv-0029-GPC-DEB CDCR #J-49028 12 ORDER DENYING 13 PLAINTIFF’S MOTION FOR Plaintiff, RECONSIDERATION 14 vs. PURSUANT TO FEDERAL 15 RULE OF CIVIL PROCEDURE DANIEL PARAMO, Warden, A. 60(b) 16 HAMMETT, J. MENDEZ, R. BATTAD,

F. GRISEZ, R. ESQUILIN, 17 [ECF No. 62] Defendants. 18 19 20 Brian Deverick Lewis (“Lewis” or “Plaintiff”) is a state inmate proceeding pro se 21 and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Before the 22 Court is Plaintiff’s Motion for Reconsideration of this Court’s Order Granting in Part and 23 Denying in Part Defendants’ Motion for Summary Judgment. ECF No. 62. For the reasons 24 discussed below the Court denies the motion. 25 I. BACKGROUND 26 Lewis initiated this action on January 4, 2022, when he filed his original complaint. 27 ECF No. 1. The Court dismissed that complaint without prejudice and Plaintiff filed a first 28 amended complaint (“FAC”) on June 13, 2022. ECF No. 6. The FAC raised five causes of 1 action alleging that while Lewis was confined R.J. Donovan Correctional Facility (“RJD”), 2 Defendants violated his constitutional rights. See id. On October 13, 2022, the Court sua 3 sponte dismissed Claims Two (due process) and Four (equal protection) of the FAC 4 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and directed U.S. Marshal service of the 5 FAC as to the three remaining claims. ECF No. 8. 6 As to those remaining claims, Lewis alleged that while he was an inmate at RJD, his 7 First Amendment rights were violated when RJD Correctional Officer Defendants N. 8 Hammett, J. Mendez, R. Battad, F. Grisez, R. Esquilin retaliated against him for filing 9 grievances and reports concerning conditions in the kitchen at RJD (Claims One and 10 Three). See ECF No. 6 at 4, 9, 34, 36. He also alleged Defendant Paramo, RJD’s Warden 11 during the relevant period, violated his constitutional rights when he failed to supervise his 12 subordinates and stop the retaliation by other staff (Claim Five). Id. 13 Defendants moved for summary judgment on September 26, 2023, arguing that (1) 14 Lewis failed to properly exhaust his administrative remedies as to most of his claims and 15 (2) certain of Plaintiff’s claims were barred by the statute of limitations. See ECF No. 32- 16 2. On the same day, this Court issued an order notifying Plaintiff of the requirements for 17 opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), 18 and Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). ECF No. 34. On February 5, 2024, 19 Lewis filed an opposition. ECF No. 49. Defendants filed a reply on February 20, 2024. 20 ECF No. 49. Lewis filed a sur-reply on March 4, 2024.1 ECF No. 51. 21 On August 8, 2024, the Court granted in part and denied in part, Defendants’ Motion 22 for Summary Judgment. ECF No. 6. Specifically, the Court found Lewis failed to exhaust 23 administrative remedies as to all claims against Defendants Hammett, Mendez, Battad, 24 Grisez, and Paramo. Id. As to Defendant Esquilin, the Court found Lewis had exhausted 25 claims against him concerning three incidents occurring on January 23, 2017, January 27, 26

27 1 The Court’s original briefing schedule did not include leave for Plaintiff to file a sur-reply. See ECF No. 28 1 2017 and April 20, 2017. See id. at 18. However, the Court found the claims related to the 2 January 23, 2017 and April 20, 2017 incidents were barred by the statute of limitations. Id. 3 at 20–21. In sum, the Court granted Defendants’ summary judgment motion as to all claims 4 except for Plaintiff’s First Amendment retaliation claim against Esquilin related to the 5 January 27, 2017 incident. Id. at 21. 6 On July 10, 2024, Lewis filed a motion for reconsideration pursuant to Federal Rule 7 of Civil Procedure 60(b), along with a request for the Court to take judicial notice of 8 documents filed in another federal civil rights case. ECF Nos. 61, 62. Defendants filed an 9 opposition to the motion for reconsideration and a response to Plaintiff’s request for 10 judicial notice on August 9, 2024. ECF Nos. 65, 65-1. Plaintiff did not file a reply.2 11 II. REQUEST FOR JUDICIAL NOTICE 12 First, Lewis asks the Court to take judicial notice of documents filed in another 13 federal civil rights case brought by Lewis: Lewis v. Davis, et al., No. 3:19-cv-1060-TWR- 14 WVG (“Davis”). Specifically, Plaintiff asks the Court to take judicial notice of his 15 opposition to the motion for summary judgment, and the district court’s order regarding 16 summary judgment in Davis, which he alleges contain evidence supporting his motion for 17 reconsideration. See ECF No. 61. Defendants do not oppose the request. See ECF No. 65- 18 1. 19 A court may take judicial notice of facts not subject to reasonable dispute where the 20 facts “(1) [are] generally known within the trial court’s territorial jurisdiction; or (2) can 21 be accurately and readily determined from sources whose accuracy cannot reasonably be 22 questioned.” Fed. R. Evid. 201(b). Under this standard, courts may take judicial notice of 23 “undisputed matters of public record,” but generally may not take judicial notice of 24 “disputed facts stated in public records.” Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th 25 Cir. 2001) (overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 26

27 2 On August 30, 2024, the Court granted Plaintiff’s request for an extension of time and ordered Lewis to 28 1 1119, 1125–26 (9th Cir. 2002)). Public records, including documents on file in federal 2 court, are appropriate for judicial notice. See Harris v. Cnty. of Orange, 682 F.3d 1126, 3 1131–32 (9th Cir. 2012). The Court therefore GRANTS Plaintiff’s unopposed request and 4 takes judicial notice of Plaintiff’s opposition to summary judgment (ECF No. 51) and the 5 court’s order granting summary judgment (ECF No. 54) in Lewis v. Davis, 3:19-cv-1060- 6 TWR-WVG to the extent they contain undisputed facts. See Lee, 250 F.3d at 690. 7 III. MOTION FOR RECONSIDERATION 8 A. Rule 60(b) Standard 9 Federal Rule of Civil Procedure 60(b) provides for reconsideration where one or 10 more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; 11 (2) newly discovered evidence which by due diligence could not have been discovered 12 before the court’s decision; (3) fraud, misrepresentation, or misconduct by the adverse 13 party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason 14 justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 15 (9th Cir. 1993). 16 Reconsideration is “an extraordinary remedy, to be used sparingly in the interests of 17 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 18 F. 3d 877, 890 (9th Cir. 2000); see also Engleson v. Burlington N.R. Co., 972 F.2d 1038, 19 1044 (9th Cir. 1994) (stating Rule 60(b) provides for extraordinary relief and may be 20 invoked only upon a showing of “exceptional circumstances”). A motion for 21 reconsideration should not be granted “unless the district court is presented with newly 22 discovered evidence, committed clear error, or if there is an intervening change in the 23 controlling law.” 389 Orange St. Partners v. Arnold, 179 F. 3d 656, 665 (9th Cir. 1999). 24 “Whether or not to grant reconsideration is committed to the sound discretion of the court.” 25 Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F. 3d 26 1041, 1046 (9th Cir. 2003). 27 B. Plaintiff’s Arguments 28 In his motion for reconsideration, Lewis argues evidence submitted by Defendants 1 in support of their summary judgment motion was “incomplete and misleading” because 2 portions of his administrative appeals in Appeal Log Nos. RJD-A-16-4248 and RJD-A-16- 3 3931 (hereafter “RJD-16-4248” and “RJD-16-3931”) were not included in their exhibits. 4 ECF No. 62 at 4. He further argues that evidence from his filings in Davis, of which this 5 Court takes judicial notice, shows he had exhausted his claims in RJD-16-3931. Id. at 5–6. 6 While Lewis fails to cite the specific basis for his Rule 60(b) motion, the Court construes 7 it under Rule 60(b)(3), which provides for reconsideration based on fraud, 8 misrepresentation or misconduct by the adverse party. 9 In response, Defendants concede the exhibits provided in support of their summary 10 judgment motion were missing pages as to Plaintiff’s administrative appeals in RJD-16- 11 4248 and RJD-16-3931. ECF No. 65 at 7, 9. They argue, however, that this evidence was 12 available to Lewis when he filed his opposition and sur-reply to the summary judgment 13 motion and his failure to raise these arguments at that time, is fatal to his motion for 14 reconsideration. Id. at 12–14. Defendants further assert that the additional evidence does 15 not alter the court’s conclusion that those appeals were not exhausted by Lewis. Id. at 17– 16 18. Finally, Defendants contend that even if Plaintiff’s claims related to RJD-16-3931 are 17 exhausted, they are barred by the statute of limitations. Id. at 19–20. 18 C. Discussion 19 1. Appeal RJD-16-4248 20 Lewis contends he is entitled to reconsideration based on alleged misrepresentation 21 of his administrative appeals in RJD-16-4248. ECF No. 62 at 3–4. To prevail on a Rule 22 60(b)(3) motion, the movant must “prove by clear and convincing evidence” that the 23 challenged judgment was obtained through fraud, misrepresentation, or other misconduct, 24 and the conduct complained of prevented the losing party from fully and fairly presenting 25 the defense. Casey v. Albertson’s, Inc., 362 F.3d 1254, 1260 (9th Cir. 2004); De Saracho 26 v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). 27 First, while there is no dispute that Defendants failed to include documentation that 28 Plaintiff pursued his appeal in RJD-16-4248 through the second level (as opposed to only 1 the first level), Plaintiff has not shown this evidence was unavailable to him at the time he 2 responded to the summary judgment motion. Rule 60(b)(3) requires that the alleged fraud 3 or misrepresentation “not be discoverable by due diligence before or during the 4 proceedings.” Casey, 362 F.3d at 1260 (quoting Pac. & Arctic Ry. and Navigation Co. v. 5 United Transp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991)). In the Ninth Circuit, courts 6 applying Rule 60(b)(3) have construed the due diligence requirement to focus on whether 7 the moving party had prior knowledge of the alleged misrepresentation at issue in the 8 motion, or sufficient notice to choose to pursue it at that time. See United States for Use & 9 Benefit of Nasatka Barrier, Inc. v. Int’l Fid. Ins. Co., 2019 WL 6971381, at *2 (C.D. Cal. 10 2019) (denying reconsideration when plaintiffs were aware of alleged misrepresentations 11 involving adequacy of discovery responses during the trial and expressly declined to bring 12 them to the Court’s attention); Sathianathan v. Smith Barney, Inc., 2009 WL 537158, at *5 13 (N.D. Cal. 2009) (denying reconsideration when alleged fraudulent statements were 14 contained in opposing party’s motion and reply brief, and moving party failed to act on it 15 at that time); see also Berry v. Dillon, 291 F. App’x 792, 795 (9th Cir. 2008) (finding Rule 16 60(b)(3) relief inappropriate when evidence of alleged misrepresentation was in possession 17 of moving party before trial). 18 Here, Lewis provides a copy of his second-level appeal in RJD-16-4248 in support 19 of his reconsideration (ECF No. 62-1 at 2–3) and offers no reason why he could not have 20 done so in his response to Defendants’ summary judgment motion, or at the very least 21 argued at that time that the record Defendants provided of his administrative appeal in RJD- 22 16-4248 was incomplete. Therefore, Lewis is not entitled to reconsideration under Rule 23 60(b)(3) because the materials were “discoverable by due diligence before or during the 24 proceedings.” See Casey, 362 F.3d at 1260. 25 Furthermore, the Court notes that Lewis’ administrative appeal in RJD-16-4248 was 26 irrelevant to the issues presented on summary judgment. RJD-16-4248 is not even 27 referenced in the Court’s order because the appeal contained no allegations related to the 28 First Amendment retaliation claims raised in Plaintiff’s FAC. In RJD-16-4248, Lewis 1 complained about insufficient law library access, an unusable copier machine, and failure 2 of library staff to comply with regulations regarding inmate access to legal materials (Cal. 3 Code Regs., tit. 15 § 3122) and access to paper, envelops and postage for indigent inmates 4 (Cal. Code Regs., tit. 15 § 3138). See ECF No. 62-1 at 2–5; see also ECF No. 65-3, Ex A 5 at 8–23. The appeal named only Paramo and contained no factual allegations which, even 6 if liberally construed, suggest First Amendment retaliation on the part of Paramo, or any 7 Defendant. Thus, it provides no basis for exhaustion of those claims raised in the FAC.3 8 See Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (a grievance suffices to exhaust a 9 claim if it puts the prison on adequate notice of the problem for which the prisoner seeks 10 redress). 11 2. Appeal RJD-16-3931 12 Next, Plaintiff argues reconsideration is required based on Defendants’ alleged 13 misrepresentation of his administrative appeal in RJD-16-3931. ECF No. 62 at 4. In its 14 summary judgment order, the Court found the claims in RJD-16-3931 were not properly 15 exhausted because the appeal “was screened out without follow-up,” after Plaintiff failed 16 to include a copy of the rule violation report (“RVR”) that formed the basis for his 17 grievance with his appeal. See ECF No. 56 at 8 (citing ECF No. 32-7, Blanding Decl., ¶ 18 8(j) & Ex. J at 145). Defendants now concede the exhibits attached to their summary 19 judgment motion did not include the complete grievance package related to RJD-16-3931, 20 due to an administrative error.4 ECF No. 65 at 9; see also ECF No. 65-3, Blanding Decl. at 21 22 23 3 Even if the appeal contained claims relevant to retaliation, there is no evidence it was properly exhausted by pursing through the third level. See Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (“The California 24 prison grievance system has three levels of review: an inmate exhausts administrative remedies by 25 obtaining a decision at each level.”) (citing Cal. Code Regs. tit. 15, § 3084.1(b)); see also Cal. Code Regs., tit. 15, § 3084.7(d)(3) (stating that third level review constitutes the decision of the Secretary of the CDCR 26 and exhausts administrative remedies).

27 4 Blanding attests he learned on August 7, 2024 that a different version of RJD-16-3931 was submitted in Davis. As a result, Blanding took another look at Plaintiff’s appeal records and found there were two files 28 1 ¶ 8, 9. Specifically, Defendants failed to include documents showing Lewis re-submitted 2 his appeal in RJD-16-3931 and it was again “screened out,” this time because the RVR 3 which provided the basis for the grievance had been dismissed.5 ECF No. 65-3, Ex. B at 4 55, 68. The response screening out Plaintiff’s second submission stated: “You were found 5 not guilty of the RVR. What’s left to appeal?” Id. at 55. 6 Lewis is not entitled to reconsideration under Rule 60(b)(3) because Defendants’ 7 purported misrepresentation was “discoverable by due diligence before or during the 8 proceedings.” Casey, 362 F.3d at 1260. Plaintiff concedes he was aware his appeal in RJD- 9 16-3931 was screened out a second time. ECF No. 62 at 4–5. Yet he offers no explanation 10 for his failure to raise this issue, or even reference RJD-16-3931, in his opposition and/or 11 sur-reply to Defendants’ summary judgment motion. Lewis admits he attached a copy of 12 the letter screening out his second submission in RJD-16-3931 as an exhibit to a motion in 13 another proceeding, filed on July 21, 2021. See Lewis v. Davis, et al., No. 3:19-cv-1060- 14 TWR-WVG (“Davis”), ECF No. 51 at 15. While Lewis states he no longer had a copy the 15 response to his re-submission, he does not explain why he could not have referenced it, 16 included an averment in his declaration, and/or asked this Court to take judicial notice of 17 the document filed in Davis, as he does now on reconsideration. Therefore, he is not entitled 18 to reconsideration under Rule 60(b)(3) because the evidence at issue was available to him 19 at the time he responded to Defendants’ summary judgment motion. See Casey, 362 F.3d 20 at 1260. 21 3. Other Evidence of Exhaustion 22 Finally, Lewis argues he is entitled to reconsideration because (1) an RJD staffer, 23

24 25 the file name while the other did not. Upon review of the files, Blanding discovered the complete grievance package. ECF No. 65-3, Blanding Decl. at ¶ 8. 26 5 On September 14, 2016, Plaintiff was found not guilty of the RVR. ECF No. 65-3, Ex. B at 55. Lewis 27 resubmitted his appeal in RJD-16-3931 on November 2, 2016 and it was screened for the second time on November 16, 2016. Id. 28 1 Sergeant Scharr, told him he had exhausted his remedies as to RJD-16-3931 and (2) the 2 court in Davis also found he had exhausted his claims as to RJD-16-3931. ECF No. 62 at 3 –5. First, these contentions do not support reconsideration under Rule 60(b)(3) because 4 Lewis does not allege fraud, misrepresentation, or other misconduct on the part of 5 Defendants. Furthermore, the documents Lewis requested this Court judicially notice make 6 it clear these arguments were available to him at the time he responded to Defendants’ 7 summary judgment motion. For instance, Scharr’s alleged statements to Lewis about 8 exhaustion of RJD-16-3931 were made on November 30, 2016. See Pl.’s Decl., ECF No. 9 62-2 at 2. And the summary judgment order in Davis was issued on January 10, 2022.6 See 10 Davis, ECF No. 54. Yet, Lewis failed to raise either of these arguments in his February 5, 11 2024 response to Defendants’ summary judgment motion. See ECF No. 49. Therefore, 12 Lewis is not entitled to reconsideration under Rule 60(b)(3). See Casey, 362 F.3d at 1260. 13 Nor is reconsideration warranted under the other sub-sections of Rule 60(b). 14 Plaintiff’s a failure to raise these arguments on summary judgment was not the result of 15 “mistake or excusable neglect” sufficient to satisfy Rule 60(b)(1). See AmTrust Bank v. 16 Lewis, 687 F. App’x 667, 670 (9th Cir. 2017) (“Because [the plaintiff] could have made 17 his arguments to the district court before entry of final judgment, he did not establish 18 ‘mistake, inadvertence, surprise, or excusable neglect’ necessary for relief under Rule 19 60(b)(1) . . ..”). And as discussed above, the evidence Lewis now points to is not “newly 20 discovered.” See Fed. R. Civ. P. 60(b)(2); Coastal Transfer Co. v. Toyta Motor Sales, 21 U.S.A., Inc., 883 F.2d 208, 212 (9th Cir. 1987) (stating “evidence in possession of the party 22 before the judgment was rendered is not newly discovered” for purposes of Rule 60(b)(2)). 23 Lewis does not allege the judgment is “void” or “has been satisfied.” See Fed. R. Civ. P. 24

25 26 6 Moreover, Plaintiff misreads the Davis court’s summary judgment order. The court in Davis did not find Lewis had exhausted the retaliation claim(s) raised in the FAC before this Court via RJD-16-3931. In its 27 order, the Davis court simply summarized arguments made by Lewis and the defendants and then went on to find RJD-16-3931 was irrelevant to the exhaustion issue in that case. See Davis, ECF No. 54 at 15–16. 28 1 ||} 60(b)(4)-(5). Lastly, Plaintiff fails to allege “extraordinary circumstances” required for 2 ||relief under Rule 60(b)(6). See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (stating “a 3 || movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying 4 || the reopening of a final judgment’’). 5 In sum, motions for reconsideration are not a vehicle for a litigant to attempt a second 6 at the apple by raising facts or arguments available prior to the entry of summary 7 ||judgment. See Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (holding 8 || the district court did not abuse its discretion in declining to consider an argument “raised 9 || for the first time on reconsideration without a good excuse”); Hopkins v. Andaya, 958 F.2d 10 887 n. 5 (9th Cir. 1992) (“A defeated litigant cannot set aside judgment because he 11 ||failed to present on a motion for summary judgment all the facts known to him that might 12 || have been useful to the court.”). Therefore, Lewis is not entitled to reconsideration of the 13 || Court’s finding that he failed to properly exhaust his claims in RJD-16-3931.’ 14 IV. CONCLUSION AND ORDER 15 For the reasons discussed above, the Court DENIES Plaintiff's Motion for 16 || Reconsideration. 17 IT IS SO ORDERED. 18 Dated: October 17, 2024 <= (Qr2atlo CE LE 19 Hon. Gonzalo P. Curiel 20 United States District Judge 21 22 7 As Defendants argue in their opposition, even if Plaintiff could show he exhausted the retaliation claim 23 || raised in RJD-16-3931, it would be barred by the statute of limitations. The statute of limitations for § 1983 claims arising in California prisons is generally four years. See Cal. Civ. Proc. Code § 335.1 (setting two-year statute of limitations for personal injury actions); Cal. Civ. Proc. Code § 452.1 (tolling the statute 25 || of limitations for up to two years based on the disability of imprisonment). This limitation period is “tolled while an inmate completes the mandatory exhaustion process.” Soto v. Sweetman, 882 F.3d 865, 870 (9th 26 || Cir. 2018). Here, Plaintiff stopped pursuing his administrative appeals as to RJD-16-3931 after he was notified his second submission in RJD-16-3931 was screened out on November 28, 2016 and after his 27 November 30, 2016 conversation with Scharr. As such, the statute of limitation began to run on December 28 1, 2016 at the latest, and expired on December 1, 2020, over a year before Lewis filed his original complaint in this action on January 7, 2022. See ECF No. 1. 10

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