Welch v. Minev ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 KENTRELL WELCH, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-01064-GMN-BNW 5 vs. ) ) ORDER 6 MICHAEL MINEV et al., ) 7 ) Defendants. ) 8 ) 9 10 Pending before the Court is Plaintiff Kentrell Welch’s (“Plaintiff’s”) Motion of 11 Challenge to Defendants AR 740 Failure to Exhaust Opposition, (ECF No. 255), which the 12 Court construed as a Motion for Reconsideration, (Min. Order, ECF No. 259). Defendants 13 Gregory Bryant, Alberto Buencamino, Louie Gallo, Michael Minev, Jennifer Nash, Charles 14 Paternostro, and Brian William’s (collectively, “Defendants’”) filed a Response, (ECF No. 15 261), to which Plaintiff filed a Reply, (ECF No. 262). 16 Also pending before the Court is Plaintiff’s Motion for Entry of Clerk’s Default, (ECF 17 No. 267), and Objection,1 (ECF No. 191), to the Magistrate Judge’s Report and 18 Recommendation, (ECF No. 182). 19 For the reasons discussed below, the Court DENIES Plaintiff’s Motion for 20 Reconsideration and DISMISSES as moot Plaintiff’s Motion for Clerk’s Entry of Default and 21 Objection to the Magistrate Judge’s Report and Recommendation. 22 /// 23 /// 24 25 1 Plaintiff’s Objection is styled as a Response to the Magistrate Judge’s Report and Recommendation. (ECF No. 191). 1 I. BACKGROUND 2 This case arises out of Defendants’ alleged indifference to Plaintiff’s serious medical 3 needs while he was incarcerated at High Desert State Prison (“HDSP”). (See generally Am. 4 Compl., ECF No. 8). Specifically, Plaintiff alleges that Defendants were deliberately 5 indifferent to his hyperthyroid chronic disease. (Am. Compl. at 2–4). On October 13, 2022, the 6 Court granted Defendants’ Motion for Summary Judgment, (ECF No. 156), determining that 7 Plaintiff did not exhaust his administrative remedies as mandated by the Prison Litigation 8 Reform Act (“PLRA”) prior to filing his lawsuit. (Order 5:22–10:5, ECF No. 253). 9 Plaintiff subsequently filed the present Motion of Challenge to Defendants AR 740 10 Failure to Exhaust Opposition, (ECF No. 255), which the Court construed as a Motion for 11 Reconsideration, (ECF No. 259). The Court discusses Plaintiff’s Motion for Reconsideration 12 below. 13 II. LEGAL STANDARD 14 Although not mentioned in the Federal Rules of Civil Procedure, motions for 15 reconsideration may be brought under Rules 59 and 60. Rule 59(e) provides that any motion to 16 alter or amend a judgment shall be filed no later than 28 days after entry of the judgment. The 17 Ninth Circuit has held that a Rule 59(e) motion for reconsideration should not be granted 18 “absent highly unusual circumstances, unless the district court is presented with newly 19 discovered evidence, committed clear error, or if there is an intervening change in the 20 controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 21 880 (9th Cir. 2009) (quoting 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 22 1999)). 23 Under Rule 60(b), a court may, upon motion and just terms, “relieve a party . . . from a 24 final judgment,” on the ground that the “judgment is void[.]” Fed. R. Civ. P. 60(b)(4). A 25 judgment is “void only if the court that rendered judgment lacked jurisdiction of the subject 1 matter, or of the parties, or if the court acted in a manner inconsistent with due process of law.” 2 In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985). Additionally, under Rule 3 60(b), a court may relieve a party from a final judgment, order or proceeding only in the 4 following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 5 discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or 6 (6) any other reason justifying relief from the judgment. Stewart v. Dupnik, 243 F.3d 549, 549 7 (9th Cir. 2000). Rule 60(b) relief should only be granted under “extraordinary circumstances.” 8 Buck v. Davis, 137 S. Ct. 759, 777, 197 L. Ed. 2d 1 (2017). 9 III. DISCUSSION 10 Plaintiff attached several additional grievances to his Motion for Reconsideration, 11 presumably to show newly discovered evidence demonstrating that the Court committed clear 12 error and that granting Defendants’ summary judgment was manifestly unjust because he did in 13 fact properly exhaust his claims with the prison. (Grievances at 13–18, Ex. A to Mot. 14 Reconsideration, ECF No. 255); (Grievances at 12–77, Ex. A to Reply, ECF No. 262). In 15 response, Defendants contend that these grievances do not constitute newly discovered 16 evidence and that Plaintiff should have produced them on summary judgment. (Resp. 3:23– 17 5:18, ECF No. 261). The Court agrees. 18 Evidence “in the possession of the party before the judgment was rendered is not newly 19 discovered . . . .” Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 212 20 (9th Cir. 1987). Here, Plaintiff has presented no evidence that the grievances were not in his 21 possession prior to when judgment was entered in this action, “which prevents any finding that 22 the grievances are ‘newly discovered evidence.’” Derello v. McAdorey, 19-cv-05884, 2021 WL 23 1541617, at *2 (D. Ariz. Apr. 20, 2021) (citation omitted). 24 /// 25 /// 1 Furthermore, the grievances referenced in Plaintiff’s Motion for Reconsideration, even if 2 newly discovered, would not change the Court’s decision to grant summary judgment in favor 3 of Defendants. The Supreme Court has held that the PLRA requires a prisoner to complete any 4 prison administrative process “capable of use” that provides the possibility of some form of 5 relief, even if the prisoner seeks damages and such relief is not available under the 6 administrative process. See Ross v. Blake, 578 U.S. 632, 639–40 (2016). The “PLRA’s 7 exhaustion requirement applies to all inmate suits about prison life, whether they involve 8 general circumstances or particular episodes, and whether they allege excessive force or 9 something wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA requires pre-suit 10 exhaustion; pursuing administrative remedies while litigation is underway does not suffice. See 11 McKinney v. Carey, 311 F.3d 1198, 1199–1200 (9th Cir. 2002) (noting that the PLRA “requires 12 exhaustion before the filing of a complaint and . . . a prisoner does not comply with this 13 requirement by exhausting available remedies during the course of the litigation”). 14 NDOC Administrative Regulation (“NDOC AR”) 740, entitled “Inmate Grievance 15 Procedure,” catalogs the administrative remedies and associated procedures available to NDOC 16 inmates. (Ex. D to MSJ, ECF No. 156-1). For a plaintiff to exhaust available remedies, NDOC 17 AR 740 first requires the inmate to either discuss the issue with a staff member or submit an 18 inmate request form prior to initiating the grievance process. Id. at 740.08(1). For claims 19 regarding medical issues, the procedure continues as follows: (1) an Informal Grievance, which 20 is “responded to by a charge nurse or designee of the Director of Nursing,” Id. at 740.08; (2) a 21 First-Level Grievance appealing the Informal Grievance decision to the “highest level of 22 Nursing Administration,” Id. at 740.09; and (3) a Second-Level Grievance, which is decided by 23 the Medical Director, Id. at 740.10. “An inmate whose grievance is denied in its entirety may 24 appeal the grievance to the next level . . . unless the action requested has already been Granted 25 at a lower level.” Id. at 740.03(6). An inmate may appeal a grievance of any level to the 1 following level within five days after the return of a decision. Id. at 740.08(12)(A), 2 740.09(5)(A). However, the grievance process is complete once a grievance is granted at any 3 level; an inmate cannot appeal a granted grievance. Id. at 740.03(6)(C). 4 The Court has reviewed the grievances attached to Plaintiff’s Motion for 5 Reconsideration and Reply, and finds that at most, they demonstrate that Plaintiff completed 6 the requirements set forth in NDOC AR 740 during the pendency of the instant action. 7 Plaintiff’s Amended Complaint was filed on August 16, 2019. (See generally Am. Compl., 8 ECF No. 8). All the grievances provided by Plaintiff that did exhaust his administrative 9 remedies were completed after his Amended Complaint was filed. (See generally Grievances, 10 Ex. A to Mot. Reconsideration); (Grievances, Ex. A to Reply). Thus, these grievances do not 11 cure the principal defect identified by the Court in its previous Order, namely that Plaintiff did 12 not exhaust his administrative remedies before filing his federal suit. See Garland v. Hughes, 13 No. 13-cv-6574, 2015 WL 5544432, at *5 (C.D. Cal. Sept. 11, 2015) (“If a prisoner has not 14 exhausted his available administrative remedies before filing his federal suit, the Court must 15 dismiss the action without prejudice to allow plaintiff to file a new action after he has 16 completed his administrative remedies.”) (citing McKinney, 311 F.3d at 1200–01). 17 The subject matter of the sole grievance that was exhausted before Plaintiff filed his 18 Amended Complaint, Grievance No. 20063070421, concerned Plaintiff’s request for dental 19 care. (Grievance No. 20063070421 at 13, Ex. A to Reply, ECF No. 262); (Grievance No. 20 20063070421 at 46, Ex. C to Defs.’ Mot. Summ. J, ECF No. 158-2). The instant action 21 concerns Defendants alleged deliberate indifference to Plaintiff’s thyroid condition. (See 22 generally Am. Compl.). Thus, Grievance No. 2006307421 is not related to Plaintiff’s 23 allegations in the present case. See Harden v. Nevada Department of Corrections, No. 2:14-cv- 24 02008, 2017 WL 937732, at *3 (D. Nev. Mar. 9, 2017) (denying the plaintiff’s motion for 25 reconsideration where although the plaintiff provided evidence that he fully exhausted several 1 grievances, the “grievances [were] not related to [the plaintiff’s]” allegations underlying the 2 present case). 3 Finally, to the extent that Plaintiff contends that NDOC AR 740 was effectively 4 unavailable to him, (Mot. Reconsideration at 7:5–10:20), the Court already rejected this 5 argument in its previous Order. (See Order 9:3–10:9) (finding that Plaintiff failed to 6 demonstrate that his administrative remedies were effectively unavailable to him); see also 7 Melendez v. Neven, No. 2:15-cv-02076, 2021 WL 832638, at *3 (D. Nev. Mar. 4, 2021) (“A 8 motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon 9 which the court already has ruled.”). Further, the sheer number of grievances filed by Plaintiff 10 “undercuts his own argument because they demonstrate that [he] indeed had knowledge of 11 how” the administrative grievance process worked and that the process was available to him. 12 Kentrell D. Welch v. Gavin Liggett, et al., No. 2:19-cv-01243, at *5 (D. Nev. Jan. 11, 2023). 13 In sum, Plaintiff reargues issues already presented and does not provide any newly 14 discovered evidence that would justify granting reconsideration. The Court finds neither clear 15 error nor manifest injustice in the reasoning of its previous Order, and therefore, the criteria for 16 reconsideration have not been met. 17 IV. CONCLUSION 18 IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration, (ECF No. 19 255), is DENIED. 20 It is FURTHER ORDERED that Plaintiff’s Motion for Entry of Clerk’s Default, (ECF 21 No. 267), and Objection, (ECF No. 191), are DISMISSED as moot. 22 DATED this __1_3__ day of January, 2023. 23 24 ___________________________________ Gloria M. Navarro, District Judge 25 UNITED STATES DISTRICT COURT