1 2 3 4 5 6 7 10 11 ALLEN HAMMLER, No. 1:19-cv-00497-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 SCOTT KERNAN, et al., (Doc. No. 42) 15 Defendants.
16 17 Plaintiff Allen Hammler is a state prisoner appearing pro se and in forma pauperis in this 18 closed action. On January 29, 2020, the undersigned issued an order adopting in full the assigned 19 magistrate judge’s October 17, 2019 findings and recommendations recommending dismissal of 20 plaintiff’s second amended complaint without further leave to amend for failure to state a claim. 21 (Doc. No. 40; see also Doc. No. 32.) 22 On February 26, 2020, plaintiff moved this court for reconsideration of the January 29, 23 2020 order. (Doc. No. 42.) Therein, plaintiff asks this court “to reconsider and modify the order 24 to reflect that no Eighth Amendment claim related to Health and Safety was” alleged in his 25 second amended complaint (SAC). (Id. at 1.) Plaintiff also reiterates his position that his SAC 26 plausibly alleges a cognizable First Amendment retaliation claim. (Id. at 3–7.) Although the 27 pending motion does not clearly state which Federal Rule of Civil Procedure plaintiff is bringing 28 his motion pursuant to, the motion does reference both Rules 59(e) and 60(b). (See id. at 6.) The 1 court finds that Rule 59(e) is the most applicable in this circumstance, providing “[a] motion to 2 alter or amend judgment must be filed no later than 28 days after the entry of the judgment.” As 3 stated above, the order adopting the magistrate judge’s findings and recommendations was issued 4 on January 29, 2020 and plaintiff’s motion for reconsideration was mailed on February 26, 2020, 5 or within 28 days of the court’s order.1 The court therefore finds plaintiff’s motion timely under 6 Rule 59(e). 7 District courts “possess[] the inherent procedural power to reconsider, rescind, or modify 8 an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles v. Santa Monica 9 Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citations and internal quotation marks omitted). A 10 motion for reconsideration under Rule 59(e), however, “should not be granted . . . unless the 11 district court is presented with newly discovered evidence, committed clear error, or if there is an 12 intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 13 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). 14 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the interests 15 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 16 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see also Pyramid Lake Paiute Tribe of Indians v. 17 Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (“[T]he orderly administration of lengthy and 18 complex litigation such as this requires the finality of orders be reasonably certain.”). Further, 19 motions for reconsideration “may not be used to raise arguments or present evidence for the first 20 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 229 21 F.3d at 890 (citing 389 Orange St. Partners, 179 F.3d at 665); accord Marlyn Nutraceuticals, 22 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). Moreover, Local Rule 23 230(j) requires, in relevant part, that in moving for reconsideration of an order denying or 24 granting a prior motion, a party must show “what new or different facts or circumstances are 25 claimed to exist which did not exist or were not shown” previously, “what other grounds exist for 26 1 Pursuant to the mailbox rule, the court construes the pending motion filed on February 26, 27 2020, the date that plaintiff “delivered it to the prison authorities for forwarding to the court clerk.” Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009) (internal quotation marks and 28 citation omitted); (see also Doc. No. 42 at 19.) 1 the motion,” and “why the facts or circumstances were not shown” at the time the substance of 2 the order which is objected to was considered. 3 Here, plaintiff has not shown mistake, inadvertence, surprise, or excusable neglect; has 4 not shown the existence of either newly discovered evidence or fraud; has not established that the 5 judgment is either void or satisfied; and has not presented any other reasons justifying relief from 6 judgment. Moreover, pursuant to the court’s Local Rules, plaintiff has not shown “new or 7 different facts or circumstances claimed to exist which did not exist or were not shown upon such 8 prior motion, or what other grounds exist for the motion.” Local Rule 230(j). 9 With respect to plaintiff’s request that this court modify the January 29,2020 order to 10 reflect that he did not assert an Eighth Amendment claim predicated on “safety concerns” in the 11 SAC, he points the court to the SAC, which asserts a “Claim Three: Violation of 8th 12 Amendment, Deliberate Indifference,” and alleges that: “Defendants were Deliberately 13 Indifferent to the Risk of injury to Plaintiff’s Constitutional Rights and the obvious risk that 14 Failure to adhere to Policies and Procedures Posed. This Claim does not go to Safety of the 15 [prison] conditions but is limited to the scope alleged.” (Doc. No. 30 at 22.) Relying on this 16 underlined language, plaintiff now argues that his SAC did not assert an Eighth Amendment 17 claim “relat[ing] to Health and Safety” of the prison and that the “magistrate [judge] in screening 18 the complaint was mandated to accept the facts as true.” (Doc. No. 42 at 2.) Plaintiff made a 19 similar argument when objecting to the October 17, 2019 findings and recommendations, noting 20 that the Eighth Amendment claim “does not go to safety of the [prison] conditions but is limited 21 to the scope alleged.” (Doc. No. 29 at 8.) 22 Plaintiff’s position is confusing and does not warrant reconsideration of this court’s 23 January 29, 2020 order adopting the October 17, 2019 findings and recommendations. The SAC 24 alleges an Eighth Amendment claim for “Deliberate Indifference.” (Doc. No. 30 at 22.) As the 25 findings and recommendations correctly pointed out, “[i]n order to state [such] a claim, the 26 plaintiff must allege facts sufficient to support a claim that prison officials knew of and 27 disregarded a substantial risk of serious harm to the plaintiff.” (Doc. No. 32 at 8.) The findings 28 and recommendations also correctly found that plaintiff’s SAC did not plausibly allege an Eighth 1 Amendment deliberate indifference claim at all, whether based on allegations relating to the 2 “health and safety” of the prison or any other allegations. (See id. at 8–9.) Contrary to plaintiff 3 assertion here, the findings and recommendations therefore did not limit its findings with respect 4 to plaintiff’s Eighth Amendment deliberate indifference claim to allegations relating to the 5 “health and safety” of the prison. Plaintiff, in both his objections to those findings and 6 recommendations and in the pending motion, does not argue that he did plausibly allege an 7 Eighth Amendment deliberate indifference claim. Accordingly, he has provided the court with no 8 basis upon which to reconsider its prior order finding that he did not plausibly allege such a 9 claim.
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1 2 3 4 5 6 7 10 11 ALLEN HAMMLER, No. 1:19-cv-00497-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 SCOTT KERNAN, et al., (Doc. No. 42) 15 Defendants.
16 17 Plaintiff Allen Hammler is a state prisoner appearing pro se and in forma pauperis in this 18 closed action. On January 29, 2020, the undersigned issued an order adopting in full the assigned 19 magistrate judge’s October 17, 2019 findings and recommendations recommending dismissal of 20 plaintiff’s second amended complaint without further leave to amend for failure to state a claim. 21 (Doc. No. 40; see also Doc. No. 32.) 22 On February 26, 2020, plaintiff moved this court for reconsideration of the January 29, 23 2020 order. (Doc. No. 42.) Therein, plaintiff asks this court “to reconsider and modify the order 24 to reflect that no Eighth Amendment claim related to Health and Safety was” alleged in his 25 second amended complaint (SAC). (Id. at 1.) Plaintiff also reiterates his position that his SAC 26 plausibly alleges a cognizable First Amendment retaliation claim. (Id. at 3–7.) Although the 27 pending motion does not clearly state which Federal Rule of Civil Procedure plaintiff is bringing 28 his motion pursuant to, the motion does reference both Rules 59(e) and 60(b). (See id. at 6.) The 1 court finds that Rule 59(e) is the most applicable in this circumstance, providing “[a] motion to 2 alter or amend judgment must be filed no later than 28 days after the entry of the judgment.” As 3 stated above, the order adopting the magistrate judge’s findings and recommendations was issued 4 on January 29, 2020 and plaintiff’s motion for reconsideration was mailed on February 26, 2020, 5 or within 28 days of the court’s order.1 The court therefore finds plaintiff’s motion timely under 6 Rule 59(e). 7 District courts “possess[] the inherent procedural power to reconsider, rescind, or modify 8 an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles v. Santa Monica 9 Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citations and internal quotation marks omitted). A 10 motion for reconsideration under Rule 59(e), however, “should not be granted . . . unless the 11 district court is presented with newly discovered evidence, committed clear error, or if there is an 12 intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 13 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). 14 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the interests 15 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 16 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see also Pyramid Lake Paiute Tribe of Indians v. 17 Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (“[T]he orderly administration of lengthy and 18 complex litigation such as this requires the finality of orders be reasonably certain.”). Further, 19 motions for reconsideration “may not be used to raise arguments or present evidence for the first 20 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 229 21 F.3d at 890 (citing 389 Orange St. Partners, 179 F.3d at 665); accord Marlyn Nutraceuticals, 22 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). Moreover, Local Rule 23 230(j) requires, in relevant part, that in moving for reconsideration of an order denying or 24 granting a prior motion, a party must show “what new or different facts or circumstances are 25 claimed to exist which did not exist or were not shown” previously, “what other grounds exist for 26 1 Pursuant to the mailbox rule, the court construes the pending motion filed on February 26, 27 2020, the date that plaintiff “delivered it to the prison authorities for forwarding to the court clerk.” Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009) (internal quotation marks and 28 citation omitted); (see also Doc. No. 42 at 19.) 1 the motion,” and “why the facts or circumstances were not shown” at the time the substance of 2 the order which is objected to was considered. 3 Here, plaintiff has not shown mistake, inadvertence, surprise, or excusable neglect; has 4 not shown the existence of either newly discovered evidence or fraud; has not established that the 5 judgment is either void or satisfied; and has not presented any other reasons justifying relief from 6 judgment. Moreover, pursuant to the court’s Local Rules, plaintiff has not shown “new or 7 different facts or circumstances claimed to exist which did not exist or were not shown upon such 8 prior motion, or what other grounds exist for the motion.” Local Rule 230(j). 9 With respect to plaintiff’s request that this court modify the January 29,2020 order to 10 reflect that he did not assert an Eighth Amendment claim predicated on “safety concerns” in the 11 SAC, he points the court to the SAC, which asserts a “Claim Three: Violation of 8th 12 Amendment, Deliberate Indifference,” and alleges that: “Defendants were Deliberately 13 Indifferent to the Risk of injury to Plaintiff’s Constitutional Rights and the obvious risk that 14 Failure to adhere to Policies and Procedures Posed. This Claim does not go to Safety of the 15 [prison] conditions but is limited to the scope alleged.” (Doc. No. 30 at 22.) Relying on this 16 underlined language, plaintiff now argues that his SAC did not assert an Eighth Amendment 17 claim “relat[ing] to Health and Safety” of the prison and that the “magistrate [judge] in screening 18 the complaint was mandated to accept the facts as true.” (Doc. No. 42 at 2.) Plaintiff made a 19 similar argument when objecting to the October 17, 2019 findings and recommendations, noting 20 that the Eighth Amendment claim “does not go to safety of the [prison] conditions but is limited 21 to the scope alleged.” (Doc. No. 29 at 8.) 22 Plaintiff’s position is confusing and does not warrant reconsideration of this court’s 23 January 29, 2020 order adopting the October 17, 2019 findings and recommendations. The SAC 24 alleges an Eighth Amendment claim for “Deliberate Indifference.” (Doc. No. 30 at 22.) As the 25 findings and recommendations correctly pointed out, “[i]n order to state [such] a claim, the 26 plaintiff must allege facts sufficient to support a claim that prison officials knew of and 27 disregarded a substantial risk of serious harm to the plaintiff.” (Doc. No. 32 at 8.) The findings 28 and recommendations also correctly found that plaintiff’s SAC did not plausibly allege an Eighth 1 Amendment deliberate indifference claim at all, whether based on allegations relating to the 2 “health and safety” of the prison or any other allegations. (See id. at 8–9.) Contrary to plaintiff 3 assertion here, the findings and recommendations therefore did not limit its findings with respect 4 to plaintiff’s Eighth Amendment deliberate indifference claim to allegations relating to the 5 “health and safety” of the prison. Plaintiff, in both his objections to those findings and 6 recommendations and in the pending motion, does not argue that he did plausibly allege an 7 Eighth Amendment deliberate indifference claim. Accordingly, he has provided the court with no 8 basis upon which to reconsider its prior order finding that he did not plausibly allege such a 9 claim. 10 With respect to plaintiff’s contention that the undersigned incorrectly concluded that the 11 SAC did not plausibly allege a First Amendment retaliation claim, the court finds that this basis 12 for reconsideration of the January 29, 2020 order is also without merit. Here, plaintiff again 13 argues that the SAC did plausibly allege a First Amendment retaliation claim, and that the court 14 would have reached the same conclusion if it liberally construed his allegations in support of that 15 claim. (Doc. No. 42 at 3.) Plaintiff’s position is unavailing. First, “[a] party seeking 16 reconsideration must show more than a disagreement with the Court’s decision, and recapitulation 17 of the cases and arguments considered by the court before rendering its original decision fails to 18 carry the moving party's burden.” Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1236 19 (E.D. Cal. 2010) (citation omitted); see also Sami Mitri v. Walgreen Co., No. 1:10-CV-538 AWI 20 SKO, 2015 WL 1876133, at *1 (E.D. Cal. Apr. 10, 2015) (“Reconsideration should not be used 21 merely to ask the court to rethink what it has already thought.”). Second, the pending motion 22 does not address, let alone dispute in any meaningful way, the analysis set forth by the 23 undersigned in the January 29 order, which found that, 24 as the [] findings and recommendations note, the SAC alleges that plaintiff refused to attend the ICC hearing at issue because he did 25 not want to wear a “size 5X Jumpsuit.” (See Doc. Nos. 32 at 3; 30 at 7.) Plaintiff admits that after the ICC hearing proceeded without 26 him in attendance, a 128-G form was issued, albeit, in his view, it included “a number of Facts [that] had been Fabricated by 27 Defendants . . . and intentionally falsified.” (Doc. No. 30 at 7–8.) However, even if the court accepts plaintiff’s allegations as true, he 28 has not once—not in his original complaint, the first amended 1 complaint, the operative SAC, or in his objections to the pending findings and recommendations—sufficiently alleged that in 2 purportedly falsifying the 128-G form, his right to free speech was denied or that he was retaliated against by defendants. Nor has 3 plaintiff argued that he was otherwise denied his rights under the First Amendment. In fact, the SAC alleges that plaintiff had an 4 opportunity to go before the ICC—and thereby exercise his First Amendment right—but refused to do so because he did not want to 5 wear the jumpsuit provided to him by prison officials. Of course, plaintiff's decision to not comply with prison regulations is not a 6 First Amendment violation, and he has provided the court to no authority so indicating. 7 g | (Doc. No. 40 at 2-3.) 9 The pending motion provides no basis warranting reconsideration of the court’s January 10 | 29, 2020 order. Accordingly, plaintiff's motion for reconsideration (Doc. No. 42) is denied in its 11 | entirety. This action will remain closed. 12 | ITIS □□ ORDERED. sae ‘ae 13 A) oe gf Dated: _ April 2, 2020 Hen | or 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28