(PC) Brookins v. Dwivedi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 vs. MOTION FOR RECONSIDERATION (ECF No. 86.) 14 RAJENDRA DWIVEDI, 15 Defendant. 16 17 18 19 I. BACKGROUND 20 Barry L. Brookins (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 22 commencing this case on May 10, 2018. (ECF No. 1.) This case now proceeds with Plaintiff’s 23 initial Complaint against sole defendant Dr. Rajendra Dwivedi (“Defendant”) for failing to 24 provide adequate medical care in violation of the Eighth Amendment. (Id.) 25 On February 8, 2021, Defendant filed a motion to dismiss this case pursuant to Rule 26 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (ECF No. 73.) On 27 March 4 and 5, 2021, Plaintiff filed an opposition to the motion. (ECF Nos. 74, 76.) On March 28 8, 2021, Defendant filed a reply to the opposition. (ECF No. 75.) 1 On April 5, 2021, Plaintiff filed a second opposition to the motion to dismiss. (ECF No. 2 79.) The court construed Plaintiff’s second opposition as an impermissible surreply and issued 3 an order striking Plaintiff’s second opposition as improperly filed. (ECF No. 82.) 4 On July 9, 2021, Plaintiff filed a response to the court’s order striking Plaintiff’s second 5 opposition as a surreply. (ECF No. 86.) The court construes Plaintiff’s response as a motion for 6 reconsideration of the court’s order. 7 II. MOTION FOR RECONSIDERATION 8 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 9 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 10 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 11 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 12 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R. 13 Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 14 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 15 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The 16 moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. 17 (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local 18 Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed 19 to exist which did not exist or were not shown upon such prior motion, or what other grounds 20 exist for the motion.” 21 “A motion for reconsideration should not be granted, absent highly unusual 22 circumstances, unless the district court is presented with newly discovered evidence, committed 23 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 24 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 25 and citations omitted, and “[a] party seeking reconsideration must show more than a 26 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 27 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 28 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 1 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 2 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 3 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 4 III. DISCUSSION 5 Plaintiff argues that he should be permitted to file a surreply in response to Defendant’s 6 reply brief filed on March 8, 2021, because Defendant raised new issues in the reply brief, 7 including: (1) that Plaintiff did not establish a constitutional Eighth Amendment violation, citing 8 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); (2) to correct and give support by 9 law the speculation by Defendant that Plaintiff gave consent to surgery where there is no evidence 10 on record to support the allegation; (3) the issues of a civil rights violation not supporting 11 Plaintiff’s claim; (4) a deliberate indifference claim not being established by Plaintiff; (5) 12 Plaintiff falling short in showing the requisite state of mind and egregious wrong by Defendant 13 Dwivedi; (6) there is still no indication in the complaint that Dr. Dwivedi was personally 14 informed of and/or made aware of the so-called injury to Plaintiff; (7) there is no allegation that 15 Dr. Dwivedi was remotely aware of the complaints and criticisms from Plaintiff; (8) Plaintiff’s 16 complaint fails to allege that Dr. Dwivedi was acting under the color of state law (which caused 17 Plaintiff to amend his reply in the April 5, 2021 documents now stricken by the court as an 18 impermissible surreply); and (9) Plaintiff is still unable to actually identify a violation of federal 19 law, see 28 U.S.C. § 1367(c)(3). 20 The court has reviewed Defendant’s motion to dismiss filed on February 8, 2021 (ECF 21 No. 73) and finds that all of the 9 issues listed by Plaintiff were raised and addressed by Defendant 22 Dwivedi in the motion to dismiss. Because all of the 9 issues listed by Plaintiff were raised and 23 addressed in the motion to dismiss filed on February 8, 2021, none of the 9 issues was a new 24 issue raised in Defendant’s reply brief filed on March 8, 2021. Plaintiff was informed of all of 25 the 9 issues in the motion to dismiss and was afforded the opportunity to respond to all of the 9 26 issues in his opposition to the motion to dismiss. Thus, Plaintiff’s contention that Defendant 27 raised new issues in the reply brief is incorrect. Plaintiff has not set forth facts or law of a strongly 28 /// 1 convincing nature to induce the court to reverse its prior decision to strike Plaintiff’s surreply. 2 Therefore, the motion for consideration shall be denied. 3 IV. CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for 5 reconsideration, filed on July 9, 2021, is DENIED. 6 IT IS SO ORDERED. 7 8 Dated: July 12, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28