1 JDN 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul Anthony Robledo, No. CV 19-05349-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Bautista, et al., 13 Defendants.
14 15 On January 4, 2023, the Court entered an Order granting Defendant Jeanelle 16 Bautista’s Motion for Summary Judgment and denying Defendant Trinity Service Group’s 17 (Trinity) Motion for Summary Judgment. (Doc. 250.) Before the Court is Plaintiff Paul 18 Anthony Robledo’s Motion for Reconsideration of that part of the January 4, 2023 Order 19 that granted Defendant Bautista’s Motion for Summary Judgment and that permitted 20 Defendant Trinity to file a successive summary judgment motion. (Doc. 252.)1 The Court 21 will deny Plaintiff’s Motion. 22 I. Background 23 Plaintiff, who is currently confined in the Arizona State Prison Complex-Lewis, 24 Bachman Unit, brought this pro se civil rights action under 42 U.S.C. § 1983 against 25 Correctional Officer (CO) Jeanelle Bautista and Trinity, the private company contracted 26 27
28 1 Also before the Court is Defendant Trinity’s Second Motion for Summary Judgment (Doc. 256), which will be addressed by a separate Order. 1 with the Arizona Department of Corrections, Rehabilitation, and Reentry to provide meal 2 service to prisoners. (Doc. 13.) 3 In Count Two of his Third Amended Complaint, Plaintiff asserted a freedom of 4 speech claim against Defendant Bautista, who was the mail and property CO II. (Doc. 13 5 at 5.) Plaintiff alleged that when incoming mail is confiscated, the only avenue for appeal 6 is for the prisoner to file an appeal to the Complex Office of Publication Review by 7 submitting an inmate letter within 30 days of receiving notice of the confiscation. Plaintiff 8 alleged that in March 2019, Defendant Bautista confiscated a piece of Plaintiff’s mail, and 9 when Plaintiff submitted an appeal request of that confiscation, Bautista opened it, read it, 10 and responded to the appeal herself, thereby censoring and stifling Plaintiff’s attempt to 11 appeal to the Lewis Complex Office of Publication Review. (Id.) 12 In Count Three, Plaintiff alleged that Defendant Trinity has a policy and custom of 13 providing Plaintiff with an insufficient diet and, as a result, he has been diagnosed with 14 vitamin B12 deficiency anemia, and he is at risk of developing serious health problems. 15 (Id. at 7–9.) 16 In its January 4, 2023 Summary Judgment Order, the Court determined that, as to 17 Count Two, Defendant Bautista’s action in confiscating Plaintiff’s incoming document and 18 denying him an opportunity for an appeal and independent review was not pursuant to any 19 established state or department procedure; rather, it constituted negligence, incompetence, 20 or a mistake, none of which supported a due process violation. (Doc. 250 at 8–9.) See 21 Hudson v. Palmer, 468 U.S. 517, 532 1984) (to support a due process violation, the 22 deprivation must be “caused by conduct pursuant to established state procedure”); Sorrels 23 v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (holding that neither “mere negligence” on 24 the part of prison officials, nor “random and unauthorized acts” are actionable as a due 25 process violation under § 1983) (citations omitted). Summary judgment was therefore 26 granted as to Plaintiff’s claim in Count Two against Defendant Bautista. 27 The Court denied summary judgment as to the Count Three conditions-of- 28 confinement claim against Defendant Trinity. (Doc. 250 at 15–20.) The Court found 1 questions of fact as to the recommended dietary allowance for vitamin B12 and whether 2 Plaintiff received food adequate in vitamin B12 to maintain his health, i.e., whether he was 3 denied “the minimal civilized measure of life’s necessities.” Foster v. Runnels, 554 F.3d 4 807, 812 (9th Cir. 2009). The Court further found a question of fact as to whether 5 Defendant Trinity was aware that its diet was insufficient in vitamin B12 and that Plaintiff 6 suffered a vitamin B12 deficiency as a result, whether Defendant Trinity was deliberately 7 indifferent to the risk to Plaintiff’s health, and whether Defendant Trinity’s policy 8 governing meals allowed a diet insufficient in vitamin B12 to be served and led to a 9 violation of Plaintiff’s constitutional rights. (Doc. 250 at 16–18.) 10 Because the record related to Plaintiff’s conditions-of-confinement claim was 11 extremely limited and deficient, the Court permitted the parties to file new summary 12 judgment motions as to the remaining claim in Count Three. (Id. at 21.) 13 Plaintiff moves for reconsideration of the January 4, 2023 Order on the grounds that 14 (1) the ruling as to the Count Two claim against Defendant Bautista was clearly erroneous, 15 and (2) permitting successive summary judgment motions is unfair, unjust, and an abuse 16 of discretion. (Doc. 252.)2 17 II. Motion for Reconsideration Standard 18 The Court set out the standard governing a motion for reconsideration in Motorola, 19 Inc. v. J.B. Rodgers Mechanical Contractors: 20 The Court has discretion to reconsider and vacate a prior order. Barber v. 21 Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Motions for reconsideration are 22 disfavored, however, and are not the place for parties to make new arguments 23 not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). Nor is reconsideration 24 to be used to ask the Court to rethink what it has already thought through. 25 See United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 26 (E.D. Va. 1983)). 27
28 2 The Court did not direct Defendants to file a response. See LRCiv 7.2(g)((2). 1 215 F.R.D. 581, 582–83 (D. Ariz. 2003). When the challenged order is not a final judgment 2 or appealable interlocutory order, the Court will grant a motion for reconsideration if: 3 (1) There are material differences in fact or law from that presented to the 4 Court and, at the time of the Court’s decision, the party moving for reconsideration could not have known of the factual or legal differences 5 through reasonable diligence; 6 (2) There are new material facts that happened after the Court’s decision; 7 (3) There has been a change in the law that was decided or enacted after the 8 Court’s decision; or 9 (4) The movant makes a convincing showing that the Court failed to consider 10 material facts that were presented to the Court before the Court’s decision. 11 Id. at 586. In addition, “[n]o motion for reconsideration shall repeat in any manner any 12 oral or written argument made in support of or in opposition to the original motion.” Id.; 13 see LRCiv 7.2(g)(1). 14 III. Discussion 15 A. Summary Judgment in Favor of Defendant Bautista 16 Plaintiff argues that granting summary judgment in favor of Defendant Bautista was 17 clearly erroneous because the ruling objectively means that, as long as Defendant Bautista 18 and other prison staff do not follow department policy that guarantees due process, then 19 they are not liable for denying a prisoner’s constitutional due process right. (Doc. 252 at 20 1–2.) Plaintiff submits that this outcome cannot be the intention of governing case law. 21 (Id.
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1 JDN 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul Anthony Robledo, No. CV 19-05349-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Bautista, et al., 13 Defendants.
14 15 On January 4, 2023, the Court entered an Order granting Defendant Jeanelle 16 Bautista’s Motion for Summary Judgment and denying Defendant Trinity Service Group’s 17 (Trinity) Motion for Summary Judgment. (Doc. 250.) Before the Court is Plaintiff Paul 18 Anthony Robledo’s Motion for Reconsideration of that part of the January 4, 2023 Order 19 that granted Defendant Bautista’s Motion for Summary Judgment and that permitted 20 Defendant Trinity to file a successive summary judgment motion. (Doc. 252.)1 The Court 21 will deny Plaintiff’s Motion. 22 I. Background 23 Plaintiff, who is currently confined in the Arizona State Prison Complex-Lewis, 24 Bachman Unit, brought this pro se civil rights action under 42 U.S.C. § 1983 against 25 Correctional Officer (CO) Jeanelle Bautista and Trinity, the private company contracted 26 27
28 1 Also before the Court is Defendant Trinity’s Second Motion for Summary Judgment (Doc. 256), which will be addressed by a separate Order. 1 with the Arizona Department of Corrections, Rehabilitation, and Reentry to provide meal 2 service to prisoners. (Doc. 13.) 3 In Count Two of his Third Amended Complaint, Plaintiff asserted a freedom of 4 speech claim against Defendant Bautista, who was the mail and property CO II. (Doc. 13 5 at 5.) Plaintiff alleged that when incoming mail is confiscated, the only avenue for appeal 6 is for the prisoner to file an appeal to the Complex Office of Publication Review by 7 submitting an inmate letter within 30 days of receiving notice of the confiscation. Plaintiff 8 alleged that in March 2019, Defendant Bautista confiscated a piece of Plaintiff’s mail, and 9 when Plaintiff submitted an appeal request of that confiscation, Bautista opened it, read it, 10 and responded to the appeal herself, thereby censoring and stifling Plaintiff’s attempt to 11 appeal to the Lewis Complex Office of Publication Review. (Id.) 12 In Count Three, Plaintiff alleged that Defendant Trinity has a policy and custom of 13 providing Plaintiff with an insufficient diet and, as a result, he has been diagnosed with 14 vitamin B12 deficiency anemia, and he is at risk of developing serious health problems. 15 (Id. at 7–9.) 16 In its January 4, 2023 Summary Judgment Order, the Court determined that, as to 17 Count Two, Defendant Bautista’s action in confiscating Plaintiff’s incoming document and 18 denying him an opportunity for an appeal and independent review was not pursuant to any 19 established state or department procedure; rather, it constituted negligence, incompetence, 20 or a mistake, none of which supported a due process violation. (Doc. 250 at 8–9.) See 21 Hudson v. Palmer, 468 U.S. 517, 532 1984) (to support a due process violation, the 22 deprivation must be “caused by conduct pursuant to established state procedure”); Sorrels 23 v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (holding that neither “mere negligence” on 24 the part of prison officials, nor “random and unauthorized acts” are actionable as a due 25 process violation under § 1983) (citations omitted). Summary judgment was therefore 26 granted as to Plaintiff’s claim in Count Two against Defendant Bautista. 27 The Court denied summary judgment as to the Count Three conditions-of- 28 confinement claim against Defendant Trinity. (Doc. 250 at 15–20.) The Court found 1 questions of fact as to the recommended dietary allowance for vitamin B12 and whether 2 Plaintiff received food adequate in vitamin B12 to maintain his health, i.e., whether he was 3 denied “the minimal civilized measure of life’s necessities.” Foster v. Runnels, 554 F.3d 4 807, 812 (9th Cir. 2009). The Court further found a question of fact as to whether 5 Defendant Trinity was aware that its diet was insufficient in vitamin B12 and that Plaintiff 6 suffered a vitamin B12 deficiency as a result, whether Defendant Trinity was deliberately 7 indifferent to the risk to Plaintiff’s health, and whether Defendant Trinity’s policy 8 governing meals allowed a diet insufficient in vitamin B12 to be served and led to a 9 violation of Plaintiff’s constitutional rights. (Doc. 250 at 16–18.) 10 Because the record related to Plaintiff’s conditions-of-confinement claim was 11 extremely limited and deficient, the Court permitted the parties to file new summary 12 judgment motions as to the remaining claim in Count Three. (Id. at 21.) 13 Plaintiff moves for reconsideration of the January 4, 2023 Order on the grounds that 14 (1) the ruling as to the Count Two claim against Defendant Bautista was clearly erroneous, 15 and (2) permitting successive summary judgment motions is unfair, unjust, and an abuse 16 of discretion. (Doc. 252.)2 17 II. Motion for Reconsideration Standard 18 The Court set out the standard governing a motion for reconsideration in Motorola, 19 Inc. v. J.B. Rodgers Mechanical Contractors: 20 The Court has discretion to reconsider and vacate a prior order. Barber v. 21 Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Motions for reconsideration are 22 disfavored, however, and are not the place for parties to make new arguments 23 not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). Nor is reconsideration 24 to be used to ask the Court to rethink what it has already thought through. 25 See United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 26 (E.D. Va. 1983)). 27
28 2 The Court did not direct Defendants to file a response. See LRCiv 7.2(g)((2). 1 215 F.R.D. 581, 582–83 (D. Ariz. 2003). When the challenged order is not a final judgment 2 or appealable interlocutory order, the Court will grant a motion for reconsideration if: 3 (1) There are material differences in fact or law from that presented to the 4 Court and, at the time of the Court’s decision, the party moving for reconsideration could not have known of the factual or legal differences 5 through reasonable diligence; 6 (2) There are new material facts that happened after the Court’s decision; 7 (3) There has been a change in the law that was decided or enacted after the 8 Court’s decision; or 9 (4) The movant makes a convincing showing that the Court failed to consider 10 material facts that were presented to the Court before the Court’s decision. 11 Id. at 586. In addition, “[n]o motion for reconsideration shall repeat in any manner any 12 oral or written argument made in support of or in opposition to the original motion.” Id.; 13 see LRCiv 7.2(g)(1). 14 III. Discussion 15 A. Summary Judgment in Favor of Defendant Bautista 16 Plaintiff argues that granting summary judgment in favor of Defendant Bautista was 17 clearly erroneous because the ruling objectively means that, as long as Defendant Bautista 18 and other prison staff do not follow department policy that guarantees due process, then 19 they are not liable for denying a prisoner’s constitutional due process right. (Doc. 252 at 20 1–2.) Plaintiff submits that this outcome cannot be the intention of governing case law. 21 (Id. at 2.) Plaintiff further argues that Defendant Bautista’s Motion for Summary Judgment 22 made clear that she believed she was following department policy; thus, her action was 23 intentional and not a mistake, negligence, or a random act. (Id.) Finally, Plaintiff contends 24 that Defendant Bautista’s claim that she misinterpreted department policy goes beyond 25 incompetence because the policy was clear, concise, and specific. (Id.) 26 None of Plaintiff’s arguments are based on new facts that arose or became known 27 after the Court’s January 4, 2023 Order. Nor does Plaintiff identify a change in the law 28 that was decided after the Court’s decision or show that the Court failed to consider facts 1 that were presented before the decision. Rather, Plaintiff effectively asks the Court to 2 rethink what it has already thought through, which is not a proper basis for reconsideration. 3 Even when considering Plaintiff’s arguments, there is no support for 4 reconsideration. Plaintiff’s claim that Defendant Bautista believed that she was following 5 policy supports that her conduct constituted a mistake or was based on incompetence, 6 which does not amount to a due process violation. Alternatively, Plaintiff appears to argue 7 that Defendant Bautista committed an unauthorized, intentional deprivation, which is not 8 actionable under the Due Process Clause. See Hudson, 468 U.S. 532 n.12, 533 (while an 9 authorized, intentional deprivation is actionable under the Due Process Clause, an 10 unauthorized, intentional deprivation of property does not constitute a procedural due 11 process violation if a meaningful postdeprivation remedy for the loss is available). 12 For the above reasons, Plaintiff’s request for reconsideration of the ruling for 13 summary judgment in Defendant Bautista’s favor will be denied. 14 B. Successive Summary Judgment Motion 15 Plaintiff argues that it was unjust and unfair to permit Defendant Trinity to file a 16 second summary judgment motion because litigation has been ongoing for four years, 17 giving Defendant Trinity more than enough time to collect evidence in support of the first 18 summary judgment motion, and allowing a second round of dispositive motions amounts 19 to a “second bite of the appeal.” (Doc. 252 at 3.) Plaintiff also argues that discovery is 20 closed, and there can be no more summary judgment motions without discovery or 21 disclosures. (Id.) Plaintiff contends that, under Hoffman v. Tonnemacher, a successive 22 summary judgment motion is appropriate only where there is already an expanded factual 23 record, not for the purpose expanding the current factual record. (Id., citing 593 F.3d 908 24 (9th Cir. 2010).) 25 In Hoffman, the district court permitted the defendant to file a second summary 26 judgment motion after a mistrial on the merits was declared. 593 F.3d at 910. The 27 expanded factual record—which justified the successive motion—included testimony from 28 the trial, testimony of an expert deposed after the deadline for filing the initial dispositive 1 motions, and the testimony of a new expert witness whom the court allowed to be added 2 after the mistrial. 593 F.3d at 912. Thus, Plaintiff is correct that this case differs from 3 Hoffman, because here, there is no new testimony or evidence that was unavailable at the 4 time Defendant Trinity filed its first summary judgment motion. But the holding in 5 Hoffman was that district courts have discretion to permit successive motions for summary 6 judgment. Id. at 912. The availability of an expanded record is just one reason that could 7 support a successive summary judgment motion—it is not the exclusive ground for 8 allowing a successive summary judgment motion. See id. at 911; Cookie Dep’t, Inc. v. 9 Hershey Co., No. 20-cv-09324-KAW, 2022 WL 5123117 at *1 (N.D. Cal. Oct. 4, 2022) 10 (“[w]hile the Ninth Circuit noted that successive motions for summary judgment are 11 ‘particularly appropriate on an expanded factual record,’ it did not state that an expanded 12 factual record was required”) (quoting Hoffman, 593 F.3d at 911); see also Enlow v. 13 Tishomingo Cnty., 962 F.2d 501, 507 n.16 (5th Cir. 1992) (“[i]n fact, the district court may 14 reconsider a previously denied summary judgment motion even in the absence of new 15 material presented”). Moreover, Rule 56 does not limit the number of summary judgment 16 motions that may be filed. See Fed. R. Civ. P. 56. 17 As Plaintiff asserts, allowing Defendant Trinity to file a second summary judgment 18 motion when it did not succeed after its own failure to submit relevant evidence gives it a 19 second bite at the apple, thereby prejudicing Plaintiff, a pro se prisoner litigant. See Nguyen 20 v. United States, 792 F.2d 1500, 1503 (9th Cir. 1986) (noting that the value of summary 21 judgment would be diminished if a party could amend the issues to be decided in the same 22 case after that party lost on summary judgment); Doherty v. Portland Cmty. College, CV- 23 99-1375-ST, 2000 WL 33200560, at *3 (D. Or. Nov. 15, 2000) (denying the plaintiff’s 24 motion for leave to file second summary judgment motion because it “would unduly 25 prejudice [the defendant] and unfairly give [the plaintiff] the proverbial second bite at the 26 apple”). The Court is loath to set a new summary judgment deadline in these 27 circumstances. 28 Nonetheless, the record in this case at summary judgment was severely lacking, and, ifthe parties can produce an expanded factual record, it may be dispositive of the remaining claim or flesh out relevant facts and issues for trial, which will make further proceedings inthis matter more efficient. In short, permitting a successive summary judgment motion 4 in this instance is within the Court’s discretion and serves to foster the “‘just, speedy, and 5 | inexpensive’ resolution of” the action. Hoffman, 593 F.3d at 911 (quoting Fed. R. Civ. P. 6) 1). 7 Plaintiff's disagreement with the Court’s decision to permit successive summary 8 | judgment motions is insufficient to warrant reconsideration. Accordingly, Plaintiff's Motion for Reconsideration will be denied. 10 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 11 | Plaintiff's Motion for Reconsideration (Doc. 252), and the Motion is denied. 12 Dated this 4th day of May, 2023. 13 14 A 7 5 15 16 _ James A. Teil Org Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28