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Avina v. Cronjagar

August 20, 2009

JOSE AVINA, PLAINTIFF,
v.
J. CRONJAGAR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION (Doc. 8) ORDER REQUIRING PLAINTIFF TO FILE RESPONSE WITHIN 30 DAYS

Plaintiff Jose Avina ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on February 25, 2009. On June 25, 2009, the Court issued an order requiring Plaintiff to either file an amended complaint or proceed only on the claims found cognizable. On July 23, 2009, Plaintiff filed a motion entitled "Objections to Magistrate's Order at Docket No. 7; and Request for Stay of Order; and Request for Order requiring Prison Officials to maintain contact information of all named defendants." (Doc. 8.) The Court construes this motion as a motion for reconsideration.

I. Legal Standard

The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Motions for reconsideration are disfavored, however, and are not the place for parties to make new arguments not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir. 1988). Nor is reconsideration to be used to ask the court to rethink what it has already thought. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983), en banc. To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds,828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule 78-230(k) requires a party to show the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

Plaintiff objects to the dismissal of most of his due process claims and his retaliation claims. The Court shall consider each argument below.

II. Plaintiff's Arguments

A. Liberal Pleading Standard

Plaintiff contends that the Court applied a more stringent pleading standard to Plaintiff than what is actually required under Federal Rule of Civil Procedure 8(a). (Doc. 8, Pl.'s Mot. 1.) It is correct that a document filed pro se is to be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations and quotations omitted). However, "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). The Court cannot supply or assume necessary elements in order for Plaintiff's claims to be cognizable. As will be discussed below, the Court dismissed certain claims by Plaintiff for lack of essential elements pled, and not for imposition of a more stringent standard.

B. Dismissal Without Development of Record

Plaintiff contends that it is an "abuse of discretion" to dismiss claims and defendants without discovery and development of record. (Pl.'s Mot. 2.) This objection is without merit. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). Development of the record is not the appropriate time to state a claim. If Plaintiff states a cognizable claim against defendants Does 3-6, then the Court will allow some limited development of the record to discover these individuals' identities. Until Plaintiff states a claim against these individuals, development of the record is premature.

C. Due Process

Plaintiff contends that the Court erred in finding that Plaintiff failed to allege lack of prior notice or opportunity to be heard. (Pl.'s Mot. 2.) Though Plaintiff cites to several paragraphs in his complaint, Plaintiff's complaint does not state with sufficient specificity that he did not receive an opportunity to be heard at all. Plaintiff does refer to opportunities in which he was not provided with an interview as required by state regulation, or failed to receive the opportunity to rebut evidence during one proceeding. (Doc. 1, Pl.'s Compl. ¶¶ 40, 53.) However, that does not necessarily indicate that Plaintiff lacked all meaningful opportunity to be heard. For example, Plaintiff submitted rebuttals regarding his gang validation. (Pl.'s Compl. ¶¶ 27, 39.) Prison officials' alleged failure to follow prison regulations is not sufficient by itself to state a cognizable due process claim. See Walker v. Sumner, 14 F.3d, 1415, 1419-20 (9th Cir. 1994) ("[I]f state procedures rise above the floor set by the Due Process Clause, a state could fail to follow its own procedures yet still provide sufficient process ...


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