Reed v. Paramo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYCHAL ANDRA REED, Case No.: 18-CV-361 JLS (LL) 12 Plaintiff, ORDER (1) GRANTING IN PART 13 vs. AND DENYING IN PART MOTION FOR RECONSIDERATION AND 14 DANIEL PARAMO, et al., (2) DENYING REQUESTS FOR A 15 Defendants. CHANGE OF VENUE AND LAW LIBRARY ACCESS 16 17 (ECF No. 229) 18 19 Presently before the Court is Plaintiff Mychal Andra Reed’s Reply to 20 Reconsideration Motion Denial (“Mot.,” ECF No. 229), which the Court construes as a 21 motion for reconsideration of its March 8, 2021 Order (the “Order,” ECF No. 222). Having 22 considered carefully Plaintiff’s arguments and the applicable law, the Court GRANTS IN 23 PART AND DENIES IN PART Plaintiff’s Motion but DENIES Plaintiff’s requests for 24 a change of venue and law library access. 25 BACKGROUND 26 Plaintiff, a pro se inmate proceeding in forma pauperis, initiated this action alleging 27 civil rights violations under 42 U.S.C. § 1983 on February 9, 2018. See ECF No. 1. 28 Defendants’ fully briefed motion for summary judgment currently is pending before 1 Magistrate Judge Daniel E. Butcher. See ECF No. 181. Plaintiff has filed numerous 2 motions concerning his access to the prison’s law library, as well as other issues. On March 3 8, 2021, the Court issued the Order, which denied three such motions, which the Court 4 construed as motions (1) for reconsideration of Magistrate Judge Butcher’s orders denying 5 law library access, (2) to compel Defendants to provide Plaintiff with legal supplies, and 6 (3) to replace Magistrate Judge Butcher. See generally Order. On March 26, 2021, 7 Plaintiff filed the instant Motion seeking reconsideration of the Order. See ECF No. 229. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 10 amend its judgment. In the Southern District of California, a party may apply for 11 reconsideration “[w]henever any motion or any application or petition for any order or 12 other relief has been made to any judge and has been refused in whole or in part.” Civ. 13 L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, “what 14 new or different facts and circumstances are claimed to exist which did not exist, or were 15 not shown, upon such prior application.” Id. 16 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 17 discovered evidence, committed clear error, or if there is an intervening change in the 18 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation 19 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 20 banc)) (emphasis in original). “Clear error or manifest injustice occurs when ‘the 21 reviewing court on the entire record is left with the definite and firm conviction that a 22 mistake has been committed.’” Young v. Wolfe, CV 07-03190 RSWL-AJWx, 2017 WL 23 2798497, at *5 (C.D. Cal. June 27, 2017) (quoting Smith v. Clark Cnty. Sch. Dist., 727 F.3d 24 950, 955 (9th Cir. 2013)). 25 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 26 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 27 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for 28 reconsideration is in the “sound discretion” of the district court. Navajo Nation v. Norris, 1 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may 2 not raise new arguments or present new evidence if it could have reasonably raised them 3 earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 4 656, 665 (9th Cir. 1999)). 5 ANALYSIS 6 Plaintiff’s Motion “respectfully disagrees” with the Order. Mot. at 1. First, Plaintiff 7 claims his motion for reconsideration should have been granted because Defendants’ 8 declarations are “hearsay” and not evidence that Plaintiff ever visited the law library. Id. 9 at 2. He further claims that on “the exact day this Court made its ruling to deny Plaintiff’s 10 motions, Plaintiff’s March 8, 2021 scheduled law library visit was cancelled, with no 11 reason given, and he has not had law library access since, although his PLU status expires 12 on March 18, 2021.” Id. at 2–3 (emphasis in original). Second, Plaintiff indicates that he 13 “never ask [sic] this Court to replace Magistrate Judge Butcher, nor can his language be 14 misconstrued as such. Plaintiff ask [sic] for (specifically), a *change of venue,* due to this 15 Court’s persistent ‘prejudice’ by its officials.” Id. at 3 (emphasis in original). Plaintiff 16 claims that “litigating in this Court has been a legal ‘nightmare’” and that “Plaintiff is very 17 astute to this Courts [sic] bias and is at wits end [sic] as to why the situation is so.” Id. 18 Plaintiff accordingly “again request [sic] law library access and/or change of venue for 19 ‘fairness.’” Id. at 5. 20 First, the Court has already addressed, and denied, Plaintiff’s argument that 21 Defendants’ declarations do not constitute “evidence.” See Order at 3. “A [moving party] 22 fails to meet his burden to establish a manifest error of law by merely repeating the same 23 arguments already raised.” Kowalski v. Anova Food, LLC, 958 F. Supp. 2d 1147, 1154– 24 55 (D. Haw. 2013) (citing Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Am. Eurocopter 25 Corp., Civ. No. 09–00136 DAE–LEK, 2009 WL 3424969, at *2 (D. Haw. Oct. 26, 2009); 26 San Luis & Delta–Mendota Water Auth. v. U.S. Dep't Interior, 624 F. Supp. 2d 1197 (E.D. 27 Cal. 2009)). Accordingly, the Court DENIES the Motion to the extent it argues for 28 reconsideration on this basis. 1 Second, as to Plaintiff’s claim that he has not been permitted law library access since 2 March 8, 2021, while Rule 59(e) contemplates reconsideration of a prior order in light of 3 “newly discovered evidence,” Plaintiff’s “new evidence” is rather “new facts altogether, 4 not new evidence of facts existing at the time of [the order in question].” Alicea v. Machete 5 Music, 744 F.3d 773, 782 (1st Cir. 2014) (emphasis in original). The Court declines to 6 reconsider its Order in light of evidence post-dating the Order. Should Plaintiff wish to 7 bring a new motion requesting law library access premised on these new facts, he should 8 file a new motion before Magistrate Judge Butcher. Accordingly, the Court DENIES the 9 Motion to the extent it seeks reconsideration based on new facts not in existence at the time 10 of the Order. Because the Court finds that reconsideration of the Order’s ruling as to law 11 library access is not warranted, the Court DENIES Plaintiff’s request that the Court order 12 Defendants to provide him with law library access. 13 Finally, the Court addresses Plaintiff’s argument that the Court misconstrued his 14 request to change venue as a motion to replace Magistrate Judge Butcher. Given that the 15 Court appears to have misapprehended the relief requested by Plaintiff, the Court concludes 16 it clearly erred and GRANTS Plaintiff’s motion to reconsider his request to transfer venue. 17 “For the convenience of parties and witnesses, in the interest of justice, a district 18 court may transfer any civil action to any other district or division where it might have been 19 brought or to any district or division to which all parties have consented.” 28 U.S.C. 20 § 1404(a). The decision whether to grant a motion to transfer is a discretionary one, and 21 the court may consider various factors, such as the parties’ and the claim’s contacts with 22 the proposed forum and the plaintiff’s choice of forum. See Jones v. GNC Franchising, 23 Inc., 211 F.3d 495, 498 (9th Cir. 2000) (citation omitted). However, “[t]o support a motion 24 to transfer under § 1404(a), the moving party must first show the proposed transferee court 25 possesses subject matter jurisdiction over the action, the parties would be subject to 26 personal jurisdiction in the transferee court, and venue would have been proper in the 27 transferee court.” Waters v. Experian Info. Sols., Inc., No. 12CV308 AJB RBB, 2012 WL 28 1965333, at *2 (S.D. Cal. May 31, 2012) (citing Hoffman v. Blaski, 363 U.S. 335, 344 1 (1960); A.J. Indus., Inc. v. United States Dist. Ct. for the Cent. Dist. of Cal., 503 F.2d 384, 2 (9th Cir. 1974)). 3 Plaintiff has not identified any alternative forum where the instant action could have 4 || been brought and to which he seeks a transfer of this action; accordingly, the Court cannot 5 |}assess whether transfer to another court is permissible, much less appropriate. Even 6 || overlooking this fatal defect in Plaintiff’s request, bare assertions of bias are insufficient to 7 || establish that transfer 1s proper in the interests of justice. See Hernandez v. Parry, No. CV 8 || 11-1945-PCT-JAT, 2013 WL 1092878, at *3 (D. Ariz. Mar. 15, 2013). Finally, □□ motion 9 || for summary judgment which could be dispositive as to all of plaintiff's claims is pending. 10 || Under these circumstances, a change in venue would not serve the interests of justice and 11 motion will be denied.” Ferguson v. Hall, No. 2:06-CV-1301 MCE CKD, 2012 WL 12 |}5355760, at *1 (E.D. Cal. Oct. 30, 2012). Accordingly, the Court DENIES □□□□□□□□□□□ 13 request for a change of venue. 14 CONCLUSION 15 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 16 || Plaintiff's Motion (ECF No. 229) but DENIES Plaintiff's requests for a change of venue 17 || and for law library access. 18 IT IS SO ORDERED. 19 || Dated: April 6, 2021 . tt f Le 20 on. Janis L. Sammartino 71 United States District Judge 22 23 24 25 26 27 28 5