Armstrong v. Schwarzenegger

FILED
NOT FOR PUBLICATION SEP 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN ARMSTRONG; et al., No. 07-17342
Plaintiffs - Appellees, D.C. No. CV-94-02307-CW
ROBERT HECKER and RALPH
COLEMAN, MEMORANDUM *
Plaintiff-intervenors -
Appellees,
v.
ARNOLD SCHWARZENEGGER; et al.,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted January 28, 2010
Pasadena, California
Before: REINHARDT, TASHIMA and BERZON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellants challenge a minute order denying their motion to reconsider an
order requiring, among other things, that they provide certain of their staff
members individualized access to their computerized system for tracking disabled
prisoners and parolees. The facts underlying this particular appeal are well known
to the parties, as are the facts of the decade and a half litigation between appellants
and appellees, a class of disabled prisoners and parolees within the California state
penal system.
As a preliminary matter, this appeal is not moot. Although appellants have
already provided the access required by the order underlying the motion for
reconsideration, we could nonetheless grant them “effective relief” by holding in
their favor and allowing them to remove that access for some of their employees.
See EEOC v. Fed. Express Corp., 558 F.3d 842, 846-47 (9th Cir. 2009).
There are, however, no valid grounds for granting appellants such relief.
This court “review[s] the denial of a motion for reconsideration for abuse of
discretion.” Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1100 (9th
Cir.2004). It is firmly established that “[a]n appeal from a denial of a Rule 60(b)
motion brings up only the denial of the motion for review, not the merits of the
underlying judgment.” Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).
2
Appellants’ primary contention is that in the underlying order the district
court did not make the need-narrowness-intrusiveness findings that the Prison
Litigation Reform Act requires, and that failure to correct such a “clear” error of
law on the motion for reconsideration constituted an abuse of discretion. See
McDowell v. Calderon, 197 F.3d 1253,1255 & n.4 (9th Cir. 1999). Appellants,
however, failed to raise the need-narrowness-intrusiveness findings issue in their
motion for reconsideration. The district court cannot abuse its discretion by failing
to grant reconsideration on a ground that was not raised before it. Moreover, even
had appellants raised the issue properly, the district court made the necessary
findings in the underlying order. See Armstrong v. Schwarzenegger, No. 4:94-cv-
02307 (N.D. Cal. Sept. 11, 2007) at 22. Accordingly, there was no error in the
underlying order for the district court to correct on the motion for reconsideration.
Appellants’ contention that the district court did not enter the order for the
purpose of correcting violations of plaintiffs’ federal rights is similarly without
merit. Again, appellants failed to assert this ground in their motion for
reconsideration. Additionally, the district court made clear that the relief it ordered
“was necessary to correct the violation of federal rights,” see id., and, moreover,
the impetus for the order was appellants’ failure to comply with prior orders, which
the court had previously described as the narrowest, least intrusive means
3
necessary to correct violations of the Americans with Disabilities Act. That
appellants did less than what the court had identified as the least that was necessary
to bring them into compliance with federal law was sufficient to justify the
underlying order.
Appellants’ other contentions attack the underlying order without stating
specifically how the district court abused its discretion in failing to grant
reconsideration. These contentions are, accordingly, also without merit.1
Appellees’ request for attorney’s fees is denied without prejudice to their
making a proper motion for attorney’s fees consistent with Circuit Rule 39-1.6.
AFFIRMED.
1
Appellees’ motion to supplement the appellate record is denied.
4