Arellano v. Sedighi ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 15-CV-2059-AJB-BGS 12 Plaintiff, ORDER DENYING MOTION TO 13 v. RECONSIDER 14 DR. SEDIGHI, R. WALKER, Chief Physician and Surgeon, S. ROBERTS, 15 M.D., Chief Medical Executive, et al., 16 Defendants. 17 (Doc. No. 65) 18 19 20 Presently before the Court is Plaintiff’s motion for reconsideration. (Doc. No. 65.) 21 As will be explained in greater detail, below the Court DENIES Plaintiff’s motion. 22 BACKGROUND 23 On February 27, 2018, Magistrate Judge Skomal issued a Report and 24 Recommendation (“R&R”) recommending that the Court grant in part and deny in part 25 Defendant Dr. Sedighi’s motion to dismiss, grant without leave to amend Defendants 26 Walker, Roberts, Lewis, and Glynn’s motion to dismiss, deny Nurse Busalacchi’s motion 27 to dismiss, and deny Plaintiff’s motion to disclose the name of Doe #1. (Doc. No. 43.) On 28 March 20, 2018, the Court adopted Magistrate Judge Skomal’s R&R in its entirety. (Doc. 1 No. 44.) On April 2, 2018, the Court received Plaintiff’s untimely objections. (Doc. No. 2 46.) On March 5, 2019, the Court overruled Plaintiff’s objections and affirmed its Order 3 adopting the R&R. (Doc. No. 57.) Plaintiff was given leave to amend until April 16, 2019. 4 (Id. at 11.) On April 22, 2019, the Court then granted Plaintiff an extension until April 26, 5 2019 to file his Third Amended Complaint. (Doc. No. 60.) On the same day, Plaintiff filed 6 a motion to reconsider. (Doc. No. 62.) The Court denied that motion. (Doc. No. 63.) 7 Plaintiff then filed this instant motion to reconsider. (Doc. No. 65.) On November 25, 2019, 8 Plaintiff then filed a Third Amended Complaint. (Doc. No. 70.) 9 LEGAL STANDARD 10 Pursuant to Federal Rule of Civil Procedure 60(b), courts may only reconsider a final 11 order on certain enumerated grounds. These grounds include: (1) mistake, inadvertence, 12 surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 13 diligence, could not have been discovered in time to move for a new trial; (3) fraud, 14 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the 15 judgment has been satisfied, released or discharged; it is based on an earlier judgment that 16 has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any 17 other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b)(1)– 18 (6). A motion made under the first three subsections of Rule 60(b) must be brought within 19 a year, but a motion made under the other subsections need only be brought within a 20 “reasonable time after entry of the order sought to be set aside.” Id.; see also United States 21 v. Sparks, 685 F.2d 1128, 1130 (9th Cir. 1982). 22 In addition, Local Civil Rule 7.1(i)(1) states that a party may apply for 23 reconsideration “[w]henever any motion or any application or petition for any order or 24 other relief has been made to any judge and has been refused in whole or in part . . . .” S.D. 25 Cal. CivLR 7.1. The party seeking reconsideration must show “what new or different facts 26 and circumstances are claimed to exist which did not exist, or were not shown, upon such 27 prior application.” Id. A court has discretion in granting or denying a motion for 28 reconsideration. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003); Fuller v. 1 M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir. 2001). 2 DISCUSSION 3 Plaintiff subsequently filed a Third Amended Complaint where he did not name 4 Defendants Roberts, Lewis, and Glynn as defendants, pursuant to the Court’s previous 5 Orders. Thus, this instant motion likely could be denied as moot. However, the Court will 6 address Plaintiff’s substantive arguments. 7 Plaintiff again attempts to revive his Eighth Amendment claims against Defendants 8 Roberts, Lewis, and Glynn. (See generally Doc. No. 65.) However, Plaintiff has still failed 9 to show how Defendants Roberts, Lewis, and Glynn participated in, knew of, or reasonably 10 should have known of any constitutional injury. See Farmer v. Brennan, 511 U.S. 825, 834 11 (1994). Plaintiff again asserts that if the case law he provided is applied to his case it would 12 reveal that he pled sufficient facts to establish an Eighth Amendment violation against 13 Defendants Roberts, Lewis, and Glynn. 14 However, Plaintiff only argues that Defendants Roberts, Lewis, and Glynn received 15 his grievance and reviewed his medical records. (Doc. No. 65 at 2.) As the Court has 16 previously explained, vague and conclusory allegations are insufficient to survive a motion 17 to dismiss. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.3d 266, 268 (9th Cir. 18 1982). Furthermore, a prison official’s alleged improper processing of an inmate’s 19 grievance, without more, fails to serve as a basis for section 1983 liability. See generally 20 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners have no “separate 21 constitutional entitlement to a specific prison grievance procedure”); see also Shallowhorn 22 v. Molina, 572 Fed. App’x 545, 547 (9th Cir. 2014) (citing Ramirez, 334 F.3d at 860) 23 (finding that the district court properly dismissed section 1983 claims against defendants 24 who “were only involved in the appeals process”); Cummer v. Tilton, 465 Fed. App’x 598, 25 599 (9th Cir. 2012) (same); Dragasits v. Yu, No. 16-CV-1998 BEN (JLB), 2017 WL 26 3141802, at *14 (S.D. Cal. July 24, 2017) (collecting cases relying on Ramirez to hold that 27 a “prison official’s mere administrative review of a prisoner’s health care appeal cannot 28 serve as the basis of the official’s liability under § 1983”), adopted 2016 WL 87375772 1 ||(S.D. Cal. Apr. 29, 2016), aff'd sub nom. Bell v. Glynn, 696 Fed. App’x 249 (9th Cir. 2017). 2 || The Court has sufficiently explained several times why Plaintiff has failed to establish an 3 || Eighth Amendment claim against Defendants Roberts, Lewis, and Glynn. 4 Additionally, Plaintiff has failed to show “what new or different facts and 5 circumstances are claimed to exist which did not exist, or were not shown, upon such prior 6 || application.” S.D. Cal. CivLR 7.1. Plaintiff has advanced identical arguments in two 7 Separate motions for reconsideration. Accordingly, the Eighth Amendment claims against 8 || Defendants Roberts, Lewis, and Glynn remain dismissed without leave to amend. 9 CONCLUSION 10 Based on the foregoing, the Court DENIES Plaintiff’s motion for reconsideration. 11 || Plaintiff requests a copy of his instant motion as he did not have access to the law library 12 ||in order to make a copy. The Court finds good cause exists and ORDERS that Plaintiff 13 ||receive a copy of Docket Number 65. 14 15 || IT ISSO ORDERED. 16 17 ||Dated: June 10, 2020 Q ZS vy 3 18 Hon. Anthony J.Battaglia 19 United States District Judge 20 21 22 23 24 25 26 27 28