(PC) Dumont v. CDCR Health Care Tracy ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH E. DUMONT, No. 2:18-cv-00101-TLN-AC 12 Plaintiff, 13 v. ORDER 14 CDCR HEALTH CARE TRACY, et al., 15 Defendants. 16 17 This matter is before the Court on Plaintiff Ralph E. Dumont’s (“Plaintiff”) Motion for 18 Reconsideration of the Court’s July 6, 2021 Order dismissing this action (ECF No. 23). (ECF 19 No. 25.) For the reasons set forth below, Plaintiff’s motion is DENIED. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff, a former state prisoner proceeding pro se, initiated this civil action on January 3 17, 2018. (ECF No. 1.) On November 7, 2018, Plaintiff filed a First Amended Complaint 4 (“FAC”) which purported to assert claims for: “[(1)] A.D.A. Disabilities Blind L eye, No Catheter 5 to Urinate, Open mail, Took T.V. Slip and Fall, Falsely given 2 yrs, unlawful detension[; (2)] 6 Right to appeal in a Court of law and to pay postage. False imprisonment. Rights to proper care 7 & Freedom[; and (3)] Right to medical care while imprisoned, And secured medical rights.” 8 (ECF No. 15.) 9 On January 19, 2021, the magistrate judge issued findings and recommendations which 10 screened and dismissed the FAC with leave to amend on the basis that: Plaintiff’s claims against 11 the named state entities were barred by the Eleventh Amendment; Plaintiff failed to assert an 12 Eighth Amendment claim against Defendant Lambert because no facts were asserted against 13 Lambert; Plaintiff failed to allege facts showing Defendant Palagumi was aware of any risk to 14 Plaintiff’s health; Plaintiff’s allegations against Macias were entirely unclear; Plaintiff failed to 15 state a First Amendment access to the courts claim against Defendant Price because he failed to 16 allege sufficient facts to identify the underlying claim he was trying to pursue; and the FAC 17 improperly joined multiple unrelated claims and parties. (ECF No. 17 at 3–6.) In granting 18 Plaintiff leave to amend, the magistrate judge additionally cautioned Plaintiff that 19 the court cannot refer to a prior pleading in order to make his first amended complaint complete. Local Rule 220 requires that an 20 amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended 21 complaint supersedes the original complaint. . . . 22 VII. Plain Language Summary of this Order for a Pro Se Litigant 23 . . . If you choose to amend your complaint, the first amended complaint must include all of the claims you want to make because 24 the court will not look at the claims or information in the original complaint. Any claims and information not in the first amended 25 complaint will not be considered. 26 (Id. at 6–7 (citing Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), overruled in part by Lacey v. 27 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (claims dismissed with prejudice and 28 without leave to amend do not have to be re-pleaded in subsequent amended complaint to 1 preserve appeal) (emphases in original).) Plaintiff was granted 30 days to file an amended 2 complaint. (Id. at 7.) Plaintiff failed to file an amended complaint. 3 On March 9, 2021, the magistrate judge ordered Plaintiff to file an amended complaint 4 within 21 days or face dismissal of the action without further warning. (ECF No. 18.) Plaintiff 5 again failed to file an amended complaint. On April 26, 2021, the magistrate judge issued 6 findings and recommendations that found Plaintiff had failed to timely file an amended complaint 7 and recommended dismissal of the action. (ECF No. 22.) Plaintiff did not object to the findings 8 and recommendations. On July 6, 2021, the Court adopted the findings and recommendations in 9 full and dismissed this action. (ECF No. 23.) Judgment was entered the same day. (ECF No. 10 24.) 11 On July 26, 2021, Plaintiff filed the instant motion for reconsideration. (ECF No. 25.) 12 II. STANDARD OF LAW 13 The Court may grant reconsideration under either Federal Rule of Civil Procedure 14 (“Rule”) 59(e) or 60(b). See Schroeder v. McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A 15 motion to alter or amend a judgment under Rule 59(e) must be filed no later than 28 days after the 16 entry of judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for reconsideration” is treated as a 17 motion to alter or amend judgment under Rule 59(e) if it is filed within 28 days of entry of 18 judgment. Rishor v. Ferguson, 822 F.3d 482, 489–90 (9th Cir. 2016); see Am. Ironworks & 19 Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). Otherwise, it is 20 treated as a Rule 60(b) motion for relief from judgment or order. Id. Here, Plaintiff’s motion was 21 filed within twenty-eight days of entry of Judgment and is therefore construed as a motion to alter 22 or amend the judgment under Rule 59(e). (See ECF Nos. 24, 25.) 23 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the 24 district court enjoys considerable discretion in granting or denying the motion. Allstate Ins. Co. v. 25 Herron (Allstate Ins. Co.), 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. Calderon, 26 197 F.3d 1253, 1255 n.1 (9th Cir. 1999)). “In general, there are four basic grounds upon which a 27 Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of 28 law or fact upon which the judgment rests; (2) if such motion is necessary to present newly 1 discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest 2 injustice; or (4) if the amendment is justified by an intervening change in controlling law.” Id. 3 Reconsideration “should not be granted, absent highly unusual circumstances, unless the district 4 court is presented with newly discovered evidence, committed clear error, or if there is an 5 intervening change in the controlling law.” McDowell, 197 F.3d at 1255 (emphasis in original). 6 Indeed, “reconsideration of a judgment after its entry is an extraordinary remedy which should be 7 used sparingly.” Id. at 1255 n.1. Further, “[a] motion for reconsideration may not be used to 8 raise arguments or present evidence for the first time when they could reasonably have been 9 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. 10 (Marlyn), 571 F.3d 873, 880 (9th Cir. 2009) (emphasis in original). 11 III. ANALYSIS 12 Plaintiff argues, in conclusory fashion, that the Court “ignored” viable claims raised in 13 Plaintiff’s previously dismissed pleadings (mistakenly referred to by Plaintiff as his “petition”) 14 and directs the Court to re-review the original Complaint “with all details.” (See ECF No. 25 at 15 1.) This argument fails to establish Plaintiff is entitled to relief under Rule 59(e). 16 Notably, Plaintiff’s arguments do not constitute “newly discovered or previously 17 unavailable evidence” or “an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d 18 at 1111. Rather, Plaintiff is impermissibly attempting to assert arguments regarding the 19 sufficiency of his claims which could have been raised on several occasions prior to this Court’s 20 entry of Judgment. Marlyn, 571 F.3d at 880. Nor does Plaintiff identify any specific 21 circumstances that are so “highly unusual” as to require reconsideration to “prevent manifest 22 injustice.” McDowell, 197 F.3d at 1255; Allstate Ins. Co., 634 F.3d at 1111. 23 Accordingly, Plaintiff fails to demonstrate he is entitled to the extraordinary relief set 24 forth under Rule 59(e). McDowell, 197 F.3d at 1255 n.1. 25 /// 26 /// 27 /// 28 /// 1 IV. CONCLUSION 2 For the reasons discussed herein, Plaintiffs Motion for Reconsideration is DENIED. 3 | (ECF No. 25.) 4 IT IS SO ORDERED. 5 | Dated: August 30, 2021 /) 6 | jf i/ 7 Nan Vcehoy 8 Troy L. Nuhlep> 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28