Thomas v. Richard J. Donovan

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LARRY JOSEPH THOMAS, Case No.: 3:19-cv-02181-JAH-RBB CDCR #J-05107, 11 ORDER: Plaintiff, 12 vs. (1) DENYING MOTION FOR 13 RECONSIDERATION RICHARD J. DONOVAN, Warden, 14 [ECF No. 26] et al.,

15 Defendants. AND 16 (2) DISMISSING PROPOSED 17 AMENDED COMPLAINT 18 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 19 AND § 1915A(b)(1) 20 21 Larry Joseph Thomas (“Plaintiff”), incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 23 rights action, filed pursuant to 42 U.S.C. § 1983. 24 I. Procedural Background 25 At the time he filed his Complaint, Plaintiff did not prepay the $400 filing fee 26 mandated by 28 U.S.C. § 1914(a); instead, he filed several Motions to Proceed In Forma 27 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), supplemental documents in support, 28 and a Motion to Appoint Counsel. See ECF Nos. 1, 2‒4, 7, 9. 1 On January 22, 2020, the Court granted Plaintiff’s Motions to Proceed IFP, denied 2 his Motion to Appoint Counsel, conducted its mandatory initial screening of his 3 Complaint, and dismissed it sua sponte for failing to state a claim pursuant to 28 U.S.C. 4 § 1915(e)(2)(B) and § 1915A(b). See ECF No. 10. The Court also granted Plaintiff leave 5 to amend and directed him to file an Amended Complaint that addressed all the 6 deficiencies of pleading it identified on or before March 2, 2020. Id. at 5-11; see also 7 Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (“[A] district court 8 should grant leave to amend even if no request to amend the pleading was made, unless it 9 determines that the pleading could not possibly be cured.”) (citations omitted)). 10 On February 24, 2020, just one week before his Amended Complaint was due, 11 Plaintiff filed a document entitled “Motion Requesting Continuance.” See ECF No. 14. 12 While Plaintiff did not reference the Court’s January 22, 2020 Order, or even 13 acknowledge his need to amend, he asked the Court for a “continuance” and to “except 14 [sic] and grant [his] motions.” Id. at 1. Liberally construing this as a motion for an 15 extension of time in which to submit his Amended Complaint, the Court granted 16 Plaintiff’s Motion and extended the time in which he had to amend until April 10, 2020. 17 See ECF No. 17 at 3. The Court again warned Plaintiff that his failure to amend would 18 result in the dismissal of his case. See ECF No. 10 at 11; ECF No. 17 at 3-4 (citing Lira v. 19 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 20 the opportunity to fix his complaint, a district court may convert the dismissal of the 21 complaint into a dismissal of the entire action.”)). 22 Plaintiff again failed to file an Amended Complaint, and did not seek a second 23 extension of time in which to do so. Therefore, on June 3, 2020, the Court dismissed 24 Plaintiff’s civil action in its entirety based on his failure to state a claim upon which 25 § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 26 his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s 27 January 22, 2020 and March 6, 2020 Orders. See ECF No. 23 at 3. 28 / / / 1 Approximately two weeks later, on June 18, 2020, Plaintiff filed a document titled 2 as an “Affidavit” and challenging the Court’s June 3, 2020 Order, which the Court now 3 construes as a Motion for Reconsideration. See ECF No. 26. In his Affidavit, Plaintiff 4 seeks a “reasonable understanding” of his filing delays. Id. at 3. Specifically, Plaintiff 5 claims he has “fac[ed] various [sic] difficulties” to filing his Amended Complaint while 6 in prison, suggests RJD correctional officers have tampered with his mail, and claims he 7 lacks access to the law library due to the COVID-19 pandemic. Id. Plaintiff furthered 8 submitted a supplemental document entitled as an “Amended Complaint” (ECF No. 29) 9 as well as a Declaration in Support of Reconsideration1 (ECF No. 30) on August 10, 10 2020. 11 II. Plaintiff’s Motion for Reconsideration 12 A. Plaintiff’s Arguments 13 In his Motion, Plaintiff requests the Court “reconsider” its June 3, 2020 Order and 14 to re-open his civil action. See ECF No. 26 at 3. Specifically, Plaintiff ask the Court to 15 consider several “reasons” explaining his “filing delays.” Id. First, Plaintiff “believe[s]” 16 RJD correctional officers are tampering with his outgoing mail. Id. at 1. Next, Plaintiff 17 broadly claims he has had various other unspecified difficulties with RJD correctional 18 officers and faces restrictions due to the COVID-19 pandemic. Id. at 3. Finally, Plaintiff 19

20 21 1 The Court notes that the Declaration in Support of Reconsideration was not filed by Plaintiff himself. See ECF No. 30 at 1, 6 (submitted by Shadale L. Williams, “Next Kin” for X. Larry Joseph Thomas). 22 Instead, it was submitted by an “inmate legal assistant” confined at RJD who states that if the Court reconsiders this case, it will be the assistant’s “burden . . . to file” an Amended Complaint “on Plaintiff’s 23 behalf.” See ECF No. 30 at 2, 5-6. Pro se means to appear for one’s self, therefore, a person may not 24 appear on another person’s behalf in the other’s cause. See Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an attorney for others than himself.’”) 25 (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). A person must be litigating an interest personal to him. See Rucker v. Curry, No. C 08-2933 JSW (PR), 2009 WL 412705, 26 at *1 (N.D. Cal. Feb. 18, 2009) (citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)). Thus, the Court notes that even if Plaintiff was given another chance to amend his complaint, he would have to do 27 so on his own. See S.D. Cal. CivLR 5.1(h) (“[N]o document will be filed in any case by a person not a 28 party thereto.”). 1 claims he was denied access to the prison’s law library due to quarantine. Id. 2 B. Standard of Review 3 The Federal Rules of Civil Procedure do not expressly provide for motions for 4 reconsideration. But where reconsideration of a non-final order is sought, the court has 5 “inherent jurisdiction to modify, alter or revoke it.” United States v. Martin, 226 F.3d 6 1042, 1048-49 (9th Cir. 2000). “The authority of district courts to reconsider their own 7 orders before they become final, absent some applicable rule or statute to the contrary, 8 allows them to correct not only simple mistakes, but also decisions based on shifting 9 precedent, rather than waiting for the time-consuming, costly process of appeal.” Id. at 10 1049. Thus, S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration 11 “[w]henever any motion or any application or petition for any order or other relief has 12 been made to any judge . . . has been refused in whole or in part.” S.D. Cal. CivLR 13 7.1(i). However, the party seeking reconsideration must show “what new or different 14 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 15 such prior application.” Id. Local Rule 7.1(i)(2) permits motions for re consideration 16 within “30 days of the entry of the ruling.” 17 A motion for reconsideration filed pursuant to a Local Rule may also be construed 18 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 19 Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 20 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a post- 21 judgment motion will be considered a Rule 59(e) motion where it involves 22 ‘reconsideration of matters properly encompassed in a decision on the merits.’” 489 U.S. 23 at 174 (quoting White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 24 (1982)). A district court may grant a Rule 59(e) motion if it “‘is presented with newly 25 discovered evidence, committed clear error, or if there is an intervening change in the 26 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell 27 v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. 28 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 1 Similarly, under Rule 60, a motion for “relief from a final judgment, order or 2 proceeding” may be filed within a “reasonable time,” but usually must be filed “no more 3 than a year after the entry of the judgment or order or the date of the proceeding.” Fed. 4 R. Civ. P. 60(c). Reconsideration under Rule 60 may be granted in the case of: (1) 5 mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or 6 (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any 7 other reason justifying relief. Fed. R. Civ. P. 60(b). Under both Rule 59 and 60, 8 reconsideration is left to the sound discretion of the district court, Navajo Nation v. 9 Norris, 331 F.3d 1041, 1046 (9th Cir. 2003), and “is not a substitute for appeal.” 10 Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1980). 11 Plaintiff’s Motion is timely considered under both Local Rule 7.1(i) and Rule 59(e) 12 (applying to final judgments), because it was filed only 15 days “after the entry of the 13 ruling, order or judgment sought to be reconsidered.” S.D. Cal. CivLR 7.1(i); Fed. R. 14 Civ. P. 59(e); see also Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. 15 California, 649 F. Supp. 2d 1063, 1069 (E.D. Cal. 2009). However, Plaintiff’s Motion is 16 unavailing because it fails to point to new evidence, clear error, or any change in the 17 controlling law governing his purported § 1983 claims. Wood, 759 F.3d at 1121. 18 Instead, Plaintiff fails to assert any legal arguments for reconsideration and merely 19 points to various obstacles he suggests have prevented him from filing his Amended 20 Complaint on time. See ECF No. 26 at 1, 3. Plaintiff does not point to any newly 21 discovered evidence, show clear error or manifest injustice; nor does he identify any 22 intervening change in controlling law which would justify reconsideration of the Court’s 23 June 3, 2020 Order. See Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004). “Although 24 Rule 59(e) permits a district court to reconsider and amend a previous order, the rule 25 offers an extraordinary remedy, to be used sparingly in the interests of finality and 26 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 27 890 (9th Cir. 2000) (internal quotation marks omitted). “[R]econsideration’ means just 28 that: Courts will not entertain arguments that could have been but were not raised before 1 the just-issued decision. A Rule 59(e) motion is therefore backward-looking; and because 2 that is so, it maintains a prisoner’s incentives to consolidate all of his claims in his initial 3 application.” Banister v. Davis, 140 S. Ct. 1698, 1708 (2020). 4 Moreover, nothing in Plaintiff’s Motion, his supplemental documents, or the 5 Declaration submitted on his behalf shows or even plausibly suggests the Court’s June 4, 6 2020 judgment is subject to question based on the existence of newly discovered 7 evidence, fraud by the opposing party, or any mistake committed by the court. See Bynoe 8 v. Baca, 966 F.3d 972, __ (9th Cir. July 24, 2020) (discussing the circumstances that may 9 justify reopening a final judgment under Rule 60(b)). As noted above, Plaintiff’s 10 Complaint was dismissed sua sponte based on his failure to state a claim upon which 11 § 1983 relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, his 12 failure to address these deficiencies despite his having been granted a generous extension 13 of time in which to do so, and his failure to prosecute. See ECF Nos. 17, 23. To the extent 14 his lack of access to the law library,2 or conditions of confinement arising months after 15 the Court first notified him on his pleading deficiencies and need to amend on January 16 22, 2020 caused delay, Plaintiff could have requested a second extension of time. Instead, 17 he elected to file and pursue a premature notice of appeal, see ECF Nos. 18‒22, and 18 simply failed to acknowledge this Court’s deadlines until well after the Ninth Circuit 19 dismissed his appeal for lack of jurisdiction and a final judgment was entered against 20 him. See, e.g., Keeton v. Seitz, No. CV 17-7523-FMO (KS), 2018 WL 2186973, at *2 21 (C.D. Cal. May 11, 2018) (noting that “[t]he Court cannot dispose of a case on its merits 22 23 24 2 Even assuming COVID-19 restrictions have limited Plaintiff’s access to the prison’s law library, those 25 limitations, without more, are insufficient to justify his failure to prosecute given the pre-pandemic filing deadline originally set and the extension of time previously granted in this case. See, e.g., Rosenblum v. 26 Ellis, No. 1:05-CV-01473-LJO-GSA-PC, 2010 WL 2471148, at *2 (E.D. Cal. June 10, 2010) (advising pro se prisoner that the “lack of access to the law library is not sufficient grounds for a motion for extension 27 of time in which to file an amended complaint.”); id. (noting that an “amended complaint does not require legal analysis. Plaintiff must simply allege the facts that entitle him to relief, and state the legal cause of 28 1 when the plaintiff fails to move the case forward, does not comply with court orders, and 2 does not explain his silence or delay.”), appeal dismissed sub nom. Keeton v. D. Seitz, 3 No. 18-55793, 2018 WL 4489308 (9th Cir. Aug. 24, 2018); cf. Forte v. Jones, 2014 WL 4 7069447, at *3 (E.D. Cal. Dec. 12, 2014) (noting that plaintiff’s “decision to engage in 5 multiple simultaneous lawsuits is a matter of choice and the demands on his time and 6 attention in one action do not constitute an excuse for deadlines missed in another 7 action.”); Haywood v. Bedatsky, 2007 WL 1412523, *5 (D. Ariz. May 11, 2007) (finding 8 extension of time to serve defendants unwarranted because while plaintiff was 9 proceeding pro se, he “[wa]s not a novice litigator,” and “had filed at least three previous 10 lawsuits against many of the[] same [d]efendants.”).3 11 Thus, because Plaintiff points to no intervening change in the law, material 12 oversight, or any error whatsoever under Rule 59(e), and because Plaintiff does not seek 13 to vacate the Court’s judgment in this case based on any mistake, inadvertence, surprise, 14 excusable neglect, newly discovered evidence, or other reason justifying relief pursuant 15 to Rule 60(b), his Motion for Reconsideration is DENIED. 16 III. Proposed Amendment 17 Even if the Court were to vacate the final judgment entered on June 4, 2020, it 18 further finds that the document Plaintiff has captioned as his “Amended Complaint” 19 (ECF No. 29) fails to acknowledge or even marginally address the pleading deficiencies 20 identified at length in its January 22, 2020 Order. See ECF No. 10 at 5-11. Because 21 Plaintiff’s proposed Amended Complaint still fails to state a claim upon which § 1983 22 23 24 3 The Court may take judicial notice of its own records and those publicly available on PACER and notes 25 that Plaintiff Larry Joseph Thomas, identified as CDCR Inmate #J-05107, has filed twelve pro se civil actions in the Northern, Eastern, and Southern Districts of California‒‒seven of which were filed in 2018 26 and 2019 alone. See https://pcl.uscourts.gov/pcl/pages/search/results/parties.jsf?sid=0720041416834 afe8f54f6116f0102e2 (last visited August 19, 2020); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 27 2007) (noting that the court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (quoting Bennett 28 1 relief can be granted, it too must be dismissed sua sponte pursuant to 28 U.S.C. 2 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 3 A. Initial Screening 4 As Plaintiff knows, because he is a prisoner proceeding in forma pauperis, his 5 Amended Complaint, like his original Complaint, is subject to pre-answer screening and 6 dismissal of it is found if it is frivolous, malicious, fails to state a claim, or seeks damages 7 from defendants who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 8 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 9 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 10 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 11 targets of frivolous or malicious suits need not bear the expense of responding.’” 12 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 13 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 21 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 22 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 23 B. Plaintiff’s Amended Complaint 24 Plaintiff’s proposed Amended Complaint contains virtually no factual allegations. 25 He does not reallege any of the claims or expand on any of his arguments raised in his 26 original Complaint and does not assert any individualized claims with respect to any 27 named Defendants. Instead, Plaintiff merely offers vague, conclusory, and scattered 28 assertions like “there is a big major problem going on” with his due process rights, RJD 1 prison “is still responsible for [his] lost properties,” he has “been depriv[ed] of … most 2 needed necessities,” and “cruel an[d] unusual punishment is still against the law.” See 3 ECF No. 29 at 3, 6, 8. The remainder of his proposed pleading consists of random 4 exhibits, letters addressed to Warden, inmate appeals, an Inmate Property Inventory, 5 Legal Status and Sentencing Summary, and duplicate copies of Plaintiff’s prison trust 6 account statements and declarations of his indigency. Id. at 22‒44. 7 This type of submission falls far short of stating a plausible claim for relief. See 8 Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 9 And while the court “ha[s] an obligation where the petitioner is pro se, particularly in 10 civil rights cases, to construe the pleadings liberally and to afford the petitioner the 11 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 12 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 13 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 14 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Even pro se litigants must “allege with at least 15 some degree of particularity overt acts which defendants engaged in” in order to state a 16 claim. Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th 17 Cir. 1984). Complaints that “tender [only] ‘naked assertion[s]’ devoid of ‘further factual 18 enhancement’” do not suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 19 557). And while “legal conclusions” like “cruel and unusual punishment” “can provide 20 the framework of a complaint, they must be supported by factual allegations,” lest the 21 Plaintiff face dismissal. Id. 22 Thus, as it stands, Plaintiff’s proposed Amended Complaint fails to comply with 23 Rule 8 because it does not contain “a short and plain statement of the grounds for the 24 court’s jurisdiction” or “a short and plain statement of the claim showing that the pleader 25 is entitled to relief.” Fed. R. Civ. P. 8(a)(1) & (2). See McHenry v. Renne, 84 F.3d 1172, 26 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was 27 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, 28 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th 1 Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,” 2 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and 3 comprised of “incomprehensible rambling.”); Mann v. Boatwright, 477 F.3d 1140, 1148 4 (10th Cir. 2007) (noting it is “not the district court’s job to stitch together cognizable 5 claims for relief from [a] wholly deficient pleading.”). While “much liberality is allowed 6 in construing pro se complaints, a pro se litigant cannot simply dump a stack of exhibits 7 on the court and expect the court to sift through them to determine if some nugget is 8 buried somewhere in that mountain of papers, waiting to be unearthed and refined into a 9 cognizable claim.” Samtani v. City of Laredo, 274 F. Supp. 3d 695, at *2 (S.D. Texas 10 2017). “The Court will not comb through attached exhibits seeking to determine whether 11 a claim possibly could have been stated where the pleading itself does not state a claim. 12 In short, [Plaintiff] must state a claim, not merely attach exhibits.” Stewart v. Nevada, 13 No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011). 14 For these reasons, the Court finds Plaintiff’s proposed Amended Complaint also 15 fails to state a claim upon which § 1983 relief can be granted, that dismissal of this civil 16 action remains proper pursuant to Rule 8, 28 U.S.C. § 1915(e)(2)(B)(ii), and 17 § 1915A(b)(1), and that the Court’s June 4, 2020 judgment of dismissal must stand. See 18 Lira, 427 F.3d at 1169. 19 IV. Conclusion and Order 20 Accordingly, the Court: 21 (1) DENIES Plaintiff’s Motion for Reconsideration (ECF No. 26); 22 (2) DISMISSES Plaintiff’s proposed Amended Complaint (ECF No. 29) for 23 failing to comply with Fed. R. Civ. P. 8, for failing to state a claim upon which relief may 24 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and for failing to 25 comply with the Court’s Orders requiring amendment; 26 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant 27 to 28 U.S.C. § 1915(a)(3); and 28 / / / 1 (4) DIRECTS the Clerk of the Court to again close the file. 2 IT IS SO ORDERED. 3 4 || Dated: August 28, 2020 5 Hgn. John A. Houston 6 Jnited States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11