Thomas v. Donovan
| Decision Date | 28 August 2020 |
| Docket Number | Case No.: 3:19-cv-02181-JAH-RBB |
| Parties | LARRY JOSEPH THOMAS, CDCR #J-05107, Plaintiff, v. RICHARD J. DONOVAN, Warden, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
(1) DENYING MOTION FOR RECONSIDERATION
Larry Joseph Thomas ("Plaintiff"), incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, is proceeding pro se in this civil rights action, filed pursuant to 42 U.S.C. § 1983.
At the time he filed his Complaint, Plaintiff did not prepay the $400 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed several Motions to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), supplemental documents in support, and a Motion to Appoint Counsel. See ECF Nos. 1, 2-4, 7, 9.
On January 22, 2020, the Court granted Plaintiff's Motions to Proceed IFP, denied his Motion to Appoint Counsel, conducted its mandatory initial screening of his Complaint, and dismissed it sua sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See ECF No. 10. The Court also granted Plaintiff leave to amend and directed him to file an Amended Complaint that addressed all the deficiencies of pleading it identified on or before March 2, 2020. Id. at 5-11; see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) () (citations omitted)).
On February 24, 2020, just one week before his Amended Complaint was due, Plaintiff filed a document entitled "Motion Requesting Continuance." See ECF No. 14. While Plaintiff did not reference the Court's January 22, 2020 Order, or even acknowledge his need to amend, he asked the Court for a "continuance" and to "except [sic] and grant [his] motions." Id. at 1. Liberally construing this as a motion for an extension of time in which to submit his Amended Complaint, the Court granted Plaintiff's Motion and extended the time in which he had to amend until April 10, 2020. See ECF No. 17 at 3. The Court again warned Plaintiff that his failure to amend would result in the dismissal of his case. See ECF No. 10 at 11; ECF No. 17 at 3-4 ().
Plaintiff again failed to file an Amended Complaint, and did not seek a second extension of time in which to do so. Therefore, on June 3, 2020, the Court dismissed Plaintiff's civil action in its entirety based on his failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court's January 22, 2020 and March 6, 2020 Orders. See ECF No. 23 at 3.
/ / / Approximately two weeks later, on June 18, 2020, Plaintiff filed a document titled as an "Affidavit" and challenging the Court's June 3, 2020 Order, which the Court now construes as a Motion for Reconsideration. See ECF No. 26. In his Affidavit, Plaintiff seeks a "reasonable understanding" of his filing delays. Id. at 3. Specifically, Plaintiff claims he has "fac[ed] various [sic] difficulties" to filing his Amended Complaint while in prison, suggests RJD correctional officers have tampered with his mail, and claims he lacks access to the law library due to the COVID-19 pandemic. Id. Plaintiff furthered submitted a supplemental document entitled as an "Amended Complaint" (ECF No. 29) as well as a Declaration in Support of Reconsideration1 (ECF No. 30) on August 10, 2020.
In his Motion, Plaintiff requests the Court "reconsider" its June 3, 2020 Order and to re-open his civil action. See ECF No. 26 at 3. Specifically, Plaintiff ask the Court to consider several "reasons" explaining his "filing delays." Id. First, Plaintiff "believe[s]" RJD correctional officers are tampering with his outgoing mail. Id. at 1. Next, Plaintiff broadly claims he has had various other unspecified difficulties with RJD correctional officers and faces restrictions due to the COVID-19 pandemic. Id. at 3. Finally, Plaintiffclaims he was denied access to the prison's law library due to quarantine. Id.
The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration. But where reconsideration of a non-final order is sought, the court has "inherent jurisdiction to modify, alter or revoke it." United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000). "The authority of district courts to reconsider their own orders before they become final, absent some applicable rule or statute to the contrary, allows them to correct not only simple mistakes, but also decisions based on shifting precedent, rather than waiting for the time-consuming, costly process of appeal." Id. at 1049. Thus, S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration "[w]henever any motion or any application or petition for any order or other relief has been made to any judge . . . has been refused in whole or in part." S.D. Cal. CivLR 7.1(i). However, the party seeking reconsideration must show "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." Id. Local Rule 7.1(i)(2) permits motions for re consideration within "30 days of the entry of the ruling."
A motion for reconsideration filed pursuant to a Local Rule may also be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that "a post-judgment motion will be considered a Rule 59(e) motion where it involves 'reconsideration of matters properly encompassed in a decision on the merits.'" 489 U.S. at 174 (quoting White v. New Hampshire Dep't of Employ't Sec., 455 U.S. 445, 451 (1982)). A district court may grant a Rule 59(e) motion if it "'is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
Similarly, under Rule 60, a motion for "relief from a final judgment, order or proceeding" may be filed within a "reasonable time," but usually must be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c). Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying relief. Fed. R. Civ. P. 60(b). Under both Rule 59 and 60, reconsideration is left to the sound discretion of the district court, Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003), and "is not a substitute for appeal." Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1980).
Plaintiff's Motion is timely considered under both Local Rule 7.1(i) and Rule 59(e) (), because it was filed only 15 days "after the entry of the ruling, order or judgment sought to be reconsidered." S.D. Cal. CivLR 7.1(i); Fed. R. Civ. P. 59(e); see also Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 649 F. Supp. 2d 1063, 1069 (E.D. Cal. 2009). However, Plaintiff's Motion is unavailing because it fails to point to new evidence, clear error, or any change in the controlling law governing his purported § 1983 claims. Wood, 759 F.3d at 1121.
Instead, Plaintiff fails to assert any legal arguments for reconsideration and merely points to various obstacles he suggests have prevented him from filing his Amended Complaint on time. See ECF No. 26 at 1, 3. Plaintiff does not point to any newly discovered evidence, show clear error or manifest injustice; nor does he identify any intervening change in controlling law which would justify reconsideration of the Court's June 3, 2020 Order. See Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004). "Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). Banister v. Davis, 140 S. Ct. 1698, 1708 (2020).
Moreover, nothing in Plaintiff's Motion, his supplemental documents, or the Declaration submitted on his behalf shows or even plausibly suggests the Court's June 4, 2020 judgment is subject to question based on the existence of newly discovered evidence, fraud by the opposing party, or any mistake committed by the court. See Bynoe v. Baca, 966 F.3d 972, ___ (9th Cir. July 24, 2020) (). As noted above, Plaintiff's Complaint was dismissed ...
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