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Lowe v. Dep't of Corrections of the State of California

September 21, 2009

FLOYD LOWE, PLAINTIFF(S),
v.
DEPARTMENT OF CORRECTIONS OF THE STATE OF CALIFORNIA, ET AL., DEFENDANT(S).



The opinion of the court was delivered by: David O. Carter United States District Judge Sitting by Designation

ORDER GRANTING MOTION FOR RECONSIDERATION; GRANTING MOTION FOR SUMMARY JUDGMENT

Plaintiff Floyd Lowe ("Plaintiff"), a state prisoner proceeding pro se is suing for alleged civil rights violations pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's "Request to Set Aside the Court's Decision" to grant Defendants' Motion for Summary Judgment. The Court treats Plaintiff's Motion as a Motion for Reconsideration of the Court's Order Granting Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 60(b) (the "Motion"). After considering the moving, opposing, and replying papers, the Court hereby GRANTS Plaintiff's Motion for Reconsideration, but again GRANTS Defendant's Motion for Summary Judgment.

I. Background

On October 22, 2005, Plaintiff was imprisoned in cell 227 at California State Prison Solano ("CSP Solano"). As Plaintiff climbed out of his bed, he slipped and sustained an injury to his right knee. Between October 2005 and February 2007, Plaintiff received treatment for knee pain from several doctors including Defendants Noriega and Hsieh. On April 13, 2007, Plaintiff underwent surgery on his right knee for a medial meniscus tear. Plaintiff was seen by Dr. Hsieh for a post-surgery follow up. Plaintiff alleges that at certain times throughout his treatment, Defendants were deliberately indifferent to his medical needs when they failed to provide Plaintiff with proper medical treatment and pain medication in violation of the Eighth Amendment's proscription against cruel and unusual punishment.

Plaintiff filed his initial complaint against all Defendants on July 24, 2006, and served an amended complaint on all Defendants on November 28, 2007. On May 18, 2009, Defendants filed a Motion for Summary Judgment which was granted by this Court on July 30, 2009. In the Order Granting Summary Judgment (the "Order"), this Court stated that Plaintiff had not filed a response to Defendants' Motion for Summary Judgment. However, Plaintiff sent an Opposition to Defendants' Motion for Summary Judgment on June 19, 2009, but it was not filed until August 7, 2009. On August 7, 2009, Plaintiff filed the instant motion, which the Court treats as a Motion for Reconsideration of the Court's Order Granting Defendants' Motion for Summary Judgment.

II. Legal Standard

A. Motion for Reconsideration

Fed. R. Civ. P. 60(b) provides for reconsideration only upon a showing of "(1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) 'extraordinary circumstances' which would justify relief." School Dist. No. 1J, Multnomah County v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)).

These grounds are further limited by the Local Rules. E.D. Cal. R. 78-230(k) provides that the party seeking reconsideration must provide the court with the material facts and circumstances surrounding the motion, indicating "(1) when and to what Judge or Magistrate Judge the prior motion was made, (2) what ruling, decision or order was made thereon, (3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion, and (4) why the facts or circumstances were not shown at the time of the prior motion." E.D. Cal. R. 78-230(k).

B. Motion for Summary Judgment

Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548 (1986). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).

Once the moving party meets its burden, "an opposing party may not rely merely on allegations on denials or its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." Fed. R. Civ. P. 56(e)(2); see also Anderson, 477 U.S. at 248-49. Furthermore, a party cannot create a genuine issue of material fact simply by making assertions in its legal papers. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252.

III. Discussion

A. Motion for Reconsideration Pursuant ...


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