Derello 37292 v. McAdorey ( 2021 )

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 19-05884-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 John McAdorey, et al., 13 Defendants. 14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in the Arizona State 16 Prison Complex-Florence, brought this civil rights action pursuant to 42 U.S.C. § 1983. 17 (Doc. 12.) Plaintiff seeks reconsideration of the Court’s Order granting summary judgment 18 in favor of Defendant Avant-Ortiz (Doc. 40.) 19 I. Background 20 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 21 an Eighth Amendment medical care claim against Defendant Avant-Ortiz in Count Three 22 of his Third Amended Complaint. (Doc. 16.) The Court dismissed the remaining claims 23 and Defendants. (Id.) In a December 10, 2020 Order, the Court dismissed Plaintiff’s claim 24 against Defendant Avant-Ortiz because Plaintiff failed to properly exhaust available 25 administrative remedies. (Doc. 38.) The Clerk of the Court entered Judgment the same 26 day. (Doc. 39.) 27 . . . . 28 . . . . 1 II. Plaintiff’s Motion 2 Plaintiff’s Motion was filed on January 6, 2021,1 and Plaintiff states that he is 3 seeking relief pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 40.) 4 Plaintiff asserts that the Court should reconsider its summary judgment ruling because 5 Plaintiff has “discovered new evidence not available at the time of summary judgment.” 6 (Id. at 2.) Plaintiff asserts that the new evidence consists of two administrative grievances 7 he filed between July 1, 2019 and April 30, 2020, but that Plaintiff did not receive until 8 November 8, 2020. (Id. at 3.) 9 Plaintiff asserts that one of the grievances he attaches to his Motion is a formal 10 grievance dated August 17, 2019, and although it is illegible, Plaintiff claims that it says: 11 “NP Avant-Ortiz, is being remised [sic], purposely by not calling me to address my pain 12 she is my yard physician as I need to see her. I am suffering pain, [a]nd she is aware of my 13 medication.” (Id. at 3-4.) This grievance is not signed by prison staff. (Id. at 11.) Plaintiff 14 asserts that the other grievance is an August 17, 2019 appeal to the Director related to a 15 “different Emergency grievance [Plaintiff] filed about Avant-Ortiz” wherein Plaintiff 16 complained that Avant-Ortiz was leaving him in pain by allowing his blanket to be taken 17 and ignoring his request for indomethacin. (Id. at 4-5.) This grievance appeal is not signed 18 by prison staff. (Id. at 13.) 19 Plaintiff attaches a Declaration to his Motion regarding grievances he filed against 20 “Karr,” but does not mention Avant-Ortiz in his Declaration. (Id. at 7.) 21 In Response, Defendant asserts that Plaintiff’s Motion should be denied because 22 Plaintiff provides no credible explanation for why the grievances Plaintiff allegedly 23 submitted in 2019 were unavailable to Plaintiff when responding to Defendant’s Motion 24 and does not explain how the grievances create a disputed issue of fact as to exhaustion. 25 (Doc. 42 at 1-2.) Defendant points out that Plaintiff did not request additional time to 26 27 1 Although the Court’s docket reflects that the Motion was filed on January 8, 2021, because the Motion is dated January 6, 2021, that is the proper date of filing. See Houston 28 v. Lack, 487 U.S. 266, 276 (1988) (under the “prison mailbox rule,” a document is deemed “filed” when delivered by the prisoner to a prison official for mailing). 1 respond to the Motion for Summary Judgment and did not previously seek to discover the 2 grievances. (Id. at 2.) Defendant also asserts that, in response to the Motion for Summary 3 Judgment, Plaintiff argued that obstacles prevented him from exhausting his administrative 4 remedies, which conflicts with his current testimony that these grievances demonstrate that 5 he exhausted his claim against Avant-Ortiz. (Id. at 3.) 6 III. Legal Standard 7 A Motion to Alter or Amend a Judgment pursuant to Rule 59(e) of the Federal Rules 8 of Civil Procedure “must be filed no later than 28 days after the entry of judgment.” See 9 Fed. R. Civ. P. 59(e). Moreover, “[a] Rule 59(e) motion should not be granted ‘unless the 10 district court is presented with newly discovered evidence, committed clear error, or if 11 there is an intervening change in the controlling law.’” McQuillion v. Duncan, 342 F.3d 12 1012, 1014 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 13 1999) (en banc)). 14 “Relief from judgment on the basis of newly discovered evidence is warranted if 15 (1) the moving party can show the evidence relied on in fact constitutes newly discovered 16 evidence . . .; (2) the moving party exercised due diligence to discover this evidence; and 17 (3) the newly discovered evidence must be of such magnitude that production of it earlier 18 would have been likely to change the disposition of the case.” Feature Realty, Inc. v. City 19 of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) 20 IV. Discussion 21 The grievances attached to Plaintiff’s Motion are not “newly discovered evidence.” 22 Plaintiff created these documents and has not produced evidence about why he could not 23 access these documents in responding to the Motion for Summary Judgment. Even 24 assuming Plaintiff could not access the documents, he could have made arguments about 25 these grievances in response to the Motion for Summary Judgment. Moreover, even 26 assuming Plaintiff did not have access to the grievances at the time his response to the 27 Motion for Summary Judgment was due, Plaintiff had the grievances in his possession 28 1 | prior to when Judgment was entered in this action,” which prevents any finding that the 2| grievances are “newly discovery evidence.” Feature Realty, Inc., 331 F.3d at 1093 (“Evidence ‘in the possession of the party before the judgment was rendered is not newly 4| discovered... .’”) (citation omitted). 5 Finally, the grievances still do not show that Plaintiff properly exhausted his 6| available administrative remedies. The grievances are not signed by prison officials, and Plaintiff includes no details regarding when he turned the grievances in, who he gave them 8 | to, or any other facts tending to establish a genuine dispute as to an issue of material fact. 9! Moreover, Plaintiff's assertions that he exhausted his administrative remedies conflict with 10 | his earlier assertions that he was prevented from exhausting his administrative remedies. 11 For all of the foregoing reasons, Plaintiff's Motion for Reconsideration will be denied. 13 IT IS ORDERED that Plaintiff's Motion for Reconsideration (Doc. 40) is denied. 14 Dated this 20th day of April, 2021. 15 Wichad T. gibuade Michael T. Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 > As noted above, Plaintiff asserts that he received the grievances in the mail on November 8, 2020 and Judgment entered on December 10, 2020.