Arellano v. Santos ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 3:18-cv-02391-BTM-WVG CDCR #AH-1995, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTIONS TO RECONSIDER AND vs. FOR TEMPORARY RESTRAINING 14 ORDER Dr. MICHAEL BALBIN SANTOS, 15 Defendant. [ECF Nos. 42, 47] 16 17 18 Plaintiff Raul Arellano, incarcerated at Richard J. Donovan Correctional Facility 19 (“RJD”) in San Diego, California, and proceeding pro se, filed this civil rights action 20 pursuant to 42 U.S.C. § 1983, on October 18, 2018. See Compl., ECF No. 1 at 1. Currently 21 pending before the Court are two matters: 1) Plaintiff’s Motion for Reconsideration of this 22 Court’s August 10, 2020 Order Denying Plaintiff’s Second Motion for Preliminary 23 Injunction or Temporary Restraining Order (“TRO”) (ECF No. 42); and 2) Plaintiff’s third 24 Motion for a TRO (ECF No. 47). 25 Because Plaintiff fails to present any newly discovered evidence, demonstrate any 26 clear error, or point to an intervening change in the controlling law since the Court denied 27 his second Motion for Preliminary Injunction or TRO, his Motion for Reconsideration is 28 DENIED. And because Plaintiff’s third Motion for TRO requests injunctive relief 1 involving non-parties and raises claims unrelated to the First and Eighth Amendment 2 claims at issue in this case against Defendant Santos, it too must be DENIED. 3 I. Procedural Background 4 This case involves Plaintiff’s claims against one Defendant, Dr. Michael Balbin 5 Santos, a physician employed at RJD. Plaintiff claims Dr. Santos violated his First and 6 Eighth Amendment rights when he tapered and/or terminated Plaintiff’s prescription for 7 Gabapentin between the months of May and September 2018. See Compl., ECF No. 1 at 8 3; ECF No. 3 at 2-5. Plaintiff’s claims have survived Dr. Santos’s efforts to dismiss them 9 pursuant to Fed. R. Civ. P. 12(b)(6), see ECF No. 26, Santos has filed an Answer, see ECF 10 No. 27, and a Rule 16 Scheduling Order has issued. See ECF No. 28. 11 The Court denied Plaintiff’s first Motion for a TRO on December 31, 2018. See ECF 12 No. 10. Plaintiff sought reconsideration, but that motion was denied. See ECF Nos. 12, 13. 13 On May 22, 2020, Plaintiff filed a second Motion for a TRO, but on August 10, 2020, the 14 Court denied that motion as well. See ECF Nos. 31, 40. 15 Plaintiff now seeks reconsideration of the Court’s August 10, 2020 Order Denying 16 his second Motion for a Preliminary Injunction and TRO arguing that he has “stated in a 17 million ways sufficient facts … [to] prov[e] … Defendant[’]s deliberate indifference.” See 18 ECF No. 42 at 1. Plaintiff then recounts those facts, points the Court back to his previously 19 filed motions, declarations, and exhibits, and concludes they all “reveal[] that [he] is 20 currently in pain,” and “doctors are not doing what they can do.” Id. at 3‒10. Plaintiff 21 concludes with the same request for immediate injunctive relief as he has before‒‒ 22 specifically, he asks that the Court “order for [him] to be put in adequate and effective 23 medication known through [his] medical history to be effective without life-threatening 24 side effects (2700 mg of Gabapentin +250 mg [of] Depakote).” Id. at 11. 25 In addition, Plaintiff has filed a third Motion for a TRO. See ECF No. 47. Unlike his 26 previous motions seeking immediate injunctive relief requiring Dr. Santos to provide him 27 with a specific course of medication, this new Motion requests that the California 28 Department of Corrections and Rehabilitation (“CDCR”) and “prison staff” at RJD, 1 including Officers Murphy and Wright, Counselor Meza, and Sergeant Segovia, grant 2 Plaintiff access to “all [his] legal property” so he can meet discovery and motion cut-off 3 deadlines in the 15 cases he is litigating in this Court on his own behalf, and on behalf of 4 others. See ECF No. 47 at 2. 5 II. Motion for Reconsideration 6 A. Standard of Review 7 The Federal Rules of Civil Procedure do not expressly provide for motions for 8 reconsideration. However, S.D. Cal. Civil Local Rule 7.1(i) does permit motions for 9 reconsideration “[w]henever any motion or any application or petition for any order or 10 other relief has been made to any judge ... has been refused in whole or in part.” S.D. Cal. 11 CivLR 7.1(i). The party seeking reconsideration must show “what new or different facts 12 and circumstances are claimed to exist which did not exist, or were not shown, upon such 13 prior application.” Id. Local Rule 7.1(i)(2), permits motions for re consideration within “30 14 days of the entry of the ruling.” 15 A motion for reconsideration filed pursuant to a Local Rule may also be construed 16 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 17 Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 18 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a post- 19 judgment motion will be considered a Rule 59(e) motion where it involves ‘reconsideration 20 of matters properly encompassed in a decision on the merits.’” 489 U.S. at 174 (quoting 21 White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 (1982)). A district 22 court may grant a Rule 59(e) motion if it “‘is presented with newly discovered evidence, 23 committed clear error, or if there is an intervening change in the controlling law.’” Wood 24 v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell v. Calderon, 197 F.3d 1253, 25 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 26 665 (9th Cir. 1999)). 27 / / / 28 / / / 1 B. Discussion 2 In Plaintiff’s current Motion for Reconsideration, which is timely filed pursuant to 3 S.D. Cal. CivLR 7.1(i)(2), he continues to argue that he has “establish[ed]” that Dr. Santos 4 acted with deliberate indifference to his serious medical needs and claims he has “stated 5 [so] in a million ways,” by “set[ting] out specific facts in an affidavit to clearly show that 6 immediate and irreparable injury could result” in the absence of a preliminary injunction. 7 See ECF No. 42 at 1‒2. In support, Plaintiff reiterates that that he has “told doctors as well 8 as Santos” that all [other] medications,” including Dilantin, Keppra, Depakote 9 (Divalproex) are ineffective to [treat his] tonic and partial seizures,” and that they cause 10 “life threatening side effects.” Id. at 2‒7. Plaintiff repeatedly insists his chronic neuropathic 11 pain “can only be minimized by certain kind[]s of medications (Lyrica, Gabapentin, 12 Cymbalta),” but claims Cymbalta gives him stomach pain, and Lyrica “fogs” his mind; 13 therefore, he “believe[s] Gabapentin outweighs Lyrica,” and concludes his “doctors are not 14 doing what they can do” to treat both his pain and his seizures. Id. at 8‒10. To address his 15 needs, Plaintiff again asks the Court to order Dr. Santos to prescribe him the medication 16 “known through [his] medical history to be effective without life threatening side effects 17 (2700 mg of Gabapentin + 250 mg Dapakote).” Id. at 11. In short, Plaintiff continues to 18 disagree with the Court’s conclusions as to the likelihood of success on the merits of his 19 Eighth Amendment claims against Dr. Santos. Id. at 1‒11. 20 In order to justify reconsideration, however, Local Civil Rule 7.1(i) requires Plaintiff 21 to show that “new or different facts and circumstances … exist which did not exist, or were 22 not shown,” at the time the Court denied his last Motion for a TRO. S.D. Cal. CivLR 7.1(i). 23 He has failed to point to any, and instead, raises the same claims, and makes the same 24 arguments based on the same evidence in his current Motion for Reconsideration as he did 25 in his original Motion for a TRO (ECF No. 3), his first Motion to Reconsider (ECF No. 26 12), and in his second Motion for Preliminary Injunction or TRO (ECF No. 31). 27 For example, Plaintiff argued in his original and second Motions for TRO that he 28 requires a specific dosage of Gabapentin because “the other pain medications” he had been 1 prescribed, have proven “ineffective” or have resulted in side-effects which were “severe.” 2 See ECF No. 3 at 3; ECF No. 31 at 2; ECF No. 37 at 95. In his latest Motion for 3 Reconsideration, he makes the same assertions. See ECF No. 42 at 3‒5, 6 (describing 4 Dilantin, Keppra, Depakote (Divalproex) as all “ineffective”). Plaintiff’s previous Motions 5 for TRO also alleged Dr. Santos acted with deliberate indifference to a serious risk to his 6 health and/or safety by decreasing his Gabapentin dosage because it “controlled” his 7 neuropathic pain, and in his opinion, his seizures. See ECF No. 3 at 3, 5, 6; ECF No. 31 at 8 4; ECF No. 37 at 11. Plaintiff proffered the same arguments in his second Motion for 9 Reconsideration, see ECF No. 42 at 6‒11, and has introduced no newly discovered 10 evidence to support that medical conclusion; nor has he shown Dr. Santos’s treatment 11 decisions were “medically unacceptable under the circumstances” or were taken “in 12 conscious disregard of an excessive risk to [his] health.” Toguchi v. Chung, 391 F.3d 1051, 13 1058 (9th Cir. 2004) (citations omitted) (finding no deliberate indifference as a matter of 14 law with respect to prisoner’s claims that one anti-psychotic drug (Seroquel) was superior 15 to another (Triafon)); see also Bell v. Mahoney, No. 2:18-CV-05280-PA-KES, 2019 WL 16 6792793, at *10 (C.D. Cal. Aug. 29, 2019) (noting that the “substitution of Elavil for 17 Neurontin constituted a judgment call in the course of treatment, rather than an 18 unacceptable medical decision showing reckless disregard.”); Jackson v. McIntosh, 90 F.3d 19 330, 332 (9th Cir. 1996) (“[W]here a defendant … base[s] his actions on a medical 20 judgment that either of two alternative courses of treatment would be medically acceptable 21 under the circumstances, plaintiff … fail[s] to show deliberate indifference” under the 22 Eighth Amendment); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (finding plaintiff’s 23 allegations that prison officials failed to recommend surgery as one doctor had advised 24 evidenced only a mere “difference of medical opinion” which did not constitute medical 25 indifference). 26 Finally, “[a]lthough Rule 59(e) permits a district court to reconsider and amend a 27 previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests 28 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 1 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). “Indeed, a motion 2 for reconsideration [under Rule 59(e)] should not be granted, absent highly unusual 3 circumstances, unless the district court is presented with newly discovered evidence, 4 committed clear error, or if there is an intervening change in the controlling law.” Id. 5 (citation and internal quotation marks omitted). Motions for reconsideration, like Plaintiff’s 6 current Motion, do not provide him with a second, and now third “bite at the apple,” Weeks 7 v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir. 2001), and may not “be used to ask the Court 8 to rethink what it has already thought.” United States v. Rezzonico, 32 F. Supp. 2d 1112, 9 1116 (D. Ariz. 1998); see also Ramser v. Laielli, No. 3:15-CV-2018-CAB-DHB, 2017 WL 10 3524879, at *1 (S.D. Cal. Aug. 15, 2017) (citing Keweenaw Bay Indian Cmty. v. State of 11 Mich., 152 F.R.D. 562, 563 (W.D. Mich. 1992) (“[W]here the movant is attempting to 12 obtain a complete reversal of the court’s judgment by offering essentially the same 13 arguments presented on the original motion, the proper vehicle for relief is an appeal.”); 14 Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D. N.J. 1992), aff’d 37 15 F.3d 1485 (3d Cir. 1994) (“A party seeking reconsideration must show more than a 16 disagreement with the Court’s decision, and recapitulation of the cases and arguments 17 considered by the court before rendering its original decision fails to carry the moving 18 party’s burden.”) (citation omitted)). 19 In this case, Plaintiff is well aware of the applicable legal standards required to 20 justify extraordinary preliminary injunctive relief, see e.g., ECF No. 10 at 6‒7; ECF No. 21 40 at 4‒6; yet he has persisted in filing motions for reconsideration that simply re-state his 22 allegations, re-argue their merit, and re-seek exactly the same requests for immediate 23 injunctive relief that have been clearly and consistently rejected by the Court. “[M]otions 24 to reconsider are not a platform to relitigate arguments and facts previously considered and 25 rejected.” Torbert v. Gore, No. 3:14-CV-02911-BEN-NLS, 2016 WL 7370062, at *2 (S.D. 26 Cal. Dec. 19, 2016). In fact, repetitious and meritless motions for reconsideration 27 needlessly delay the proceedings and waste the Court’s limited resources. 28 / / / 1 Accordingly, Plaintiff’s current Motion for Reconsideration (ECF No. 42) is 2 DENIED and he is hereby cautioned that any further motions requesting reconsideration 3 will be summarily denied absent at least a minimal showing that he can meet Local Civil 4 Rule 7.1(b), Fed. R. Civ. P. 59, and/or Fed. R. Civ. P. 60(b)’s requirements. See McCoy v. 5 Stronach, et al., No. 1:12-CV-000983-AWI-SAB PC, 2020 WL 6075651, at *3 (E.D. Cal. 6 Oct. 15, 2020). 7 III. Motio n for TRO for CDCR to Return Legal Property 8 In a separately filed new Motion requesting a TRO, Plaintiff claims Dr. Luu, who 9 Dr. Santos has identified as Plaintiff’s current primary care physician, see ECF No. 36‒2 10 at 4 ¶ 11, has been placed him in the Correctional Treatment Center (“CTC”) at RJD so 11 that he “can be closer to medical.” See ECF No. 47 at 1. Plaintiff claims that “[a]ccording 12 to [his] doctor[,] [he] can have all [his] property[,] but prison staff refuse to give it to him.” 13 Id. at 1‒2. Plaintiff identifies the “officers in charge” as Officers Murphy and Wright, 14 Counselor Meza, and Sergeant Segovia. Id. at 2 n.2. None of these prison officials are 15 parties to this case. 16 Under Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the 17 parties to the action,” their “officers, agents, servants, employees, and attorneys,” and 18 “other persons who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). 19 “A federal court may issue an injunction if it has personal jurisdiction over the parties and 20 subject matter jurisdiction over the claim; it may not attempt to determine the rights of 21 persons not before the court.” Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1985); 22 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 (1916); Murphy Bros., Inc. 23 v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one “becomes a 24 party officially, and is required to take action in that capacity, only upon service of 25 summons or other authority-asserting measure stating the time within which the party 26 served must appear to defend.”). 27 Here, Plaintiff claims he has 15 cases pending in this Court and others brought on 28 behalf of himself and other “people [he is] helping,” see ECF No. 47 at 2, and requests a 1 TRO granting him access to his legal property in order to meet deadlines, several of which 2 he “can’t recall.” Id. But none of the officials he seeks to enjoin are defendants in this civil 3 action; and he has not shown any of them are in active concert or participation with Dr. 4 Santos, who is no longer serving as Plaintiff’s primary care physician, see ECF No. 36‒2 5 at 2 ¶ 2, not alleged to be responsible for separating him from his property or placing him 6 in the CTC, see ECF No. 47 at 1, and the sole named Defendant in these proceedings. See 7 ECF No. 1 (“Compl.”) at 1, 2; ECF No. 6 at 12 ¶ 4 (Order sua sponte dismissing Defendants 8 California Correctional Health Care Services (CCHCS), Warden Daniel Paramo, and the 9 California Department of Corrections and Rehabilitation (CDCR) as parties based on 10 Plaintiff’s failure to state a claim against them pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 11 and 28 U.S.C. § 1915A(b)(1)). 12 Moreover, Plaintiff has not shown he is subject to any “irreparable harm in the 13 absence of preliminary relief” with respect to the First Amendment retaliation and Eighth 14 Amendment inadequate medical care claims arising during the months of May through 15 September 2018 against Dr. Santos which are at issue in this case. See Compl. at 3‒4; see 16 also Pl.’s Decl., ECF No. 3 at 2‒5; Winter v. Natural Resources Defense Council, Inc., 555 17 U.S. 7, 20 (2008). There must be “a sufficient nexus between the claims raised in a motion 18 for injunctive relief and the claims set forth in the underlying complaint itself,” such that 19 “the preliminary injunction would grant ‘relief of the same character as that which may be 20 granted finally.’” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 21 (9th Cir. 2015) (quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 220 22 (1945)). “Absent that relationship or nexus, the district court lacks authority to grant the 23 relief requested.” Id.; see, e.g., Reid v. Engel, No. 16-2220, 2017 WL 590247, at *6 (E.D. 24 Cal. Feb. 13, 2017) (denying injunction where civil rights plaintiff sought “injunctive relief 25 pertaining to property confiscated following plaintiff’s arrest, wholly unrelated to his 26 claims against the California State Bar and his criminal defense attorney raised in the 27 complaint” and sought “injunctive relief against individuals who are not named as 28 defendants.”). 1 For these reasons, Plaintiffs latest Motion for TRO (ECF No. 47) must also be 2 || DENIED. 3 Conclusion and Order 4 Based on the foregoing, the Court DENIES both Plaintiff's Motion for 5 Reconsideration of Denial of Preliminary Injunction [ECF No. 42] and his Motion for a 6 || Temporary Restraining Order for CDCR to Return Legal Property [ECF No. 47]. 7 IT IS SO ORDERED. 8 □ 9 ||Dated: October 26, 2020 ny Ted Mahar 10 Hon. Barry Ted Moskowitz ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 oo □□