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Moody v. Finander

June 9, 2010

FLOYD MOODY, CDCR #G-26035, PLAINTIFF,
v.
PAULETTE FINANDER, CHIEF MEDICAL OFFICER; K. BALL, CHIEF MEDICAL OFFICER; RICHARD BUTCHER, MD; AND MANORAM REDDY, MEDICAL CARE PROVIDER, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION TO ALTER, AMEND OR VACATE JUDGMENT AND GRANTING EXTENSION OF TIME TO RE-ATTEMPT U.S. MARSHAL SERVICE UPON DEFENDANT MANORAM REDDY PURSUANT TO FED.R.CIV.P. 4(m) [Doc. No. 43]

Currently before the Court is Plaintiff's "Motion to Alter or Vacate or Amend Judgment [FED.R.CIV.P. 59]" [Doc. No. 43] in which he seeks reconsideration of the Court's April 2, 2010 Order [Doc. No. 38].

I. Procedural Background

The Court's April 2, 2010 Order: 1) dismissed unserved Defendant Manoram Reddy on grounds that Plaintiff had failed to effect service upon her pursuant to FED.R.CIV.P. 4(m), (April 2, 2010 Order at 4-5, 20); 2) denied Defendant Finander, Ball and Butcher's Motions to Dismiss Plaintiff's Eighth Amendment inadequate medical care claims pursuant to FED.R.CIV.P. 12(b)(6), (id. at 7-11, 20); 3) granted Defendant Finander, Ball and Butcher's Motions to Dismiss Plaintiff's conspiracy claims without leave to amend pursuant to FED.R.CIV.P. 12(b)(6), (id. at 11-12 & n.2, 21); 4) denied Plaintiff's Motions for Appointment of Counsel, Preliminary Injunction and Leave to Amend, (id. at 17-19, 21); 5) granted Plaintiff's Motion Requesting Verification of Fee Payment, (id. at 20, 21); and 6) ordered Defendants Finander, Ball and Butcher to Answer the Eighth Amendment claims remaining in Plaintiff's Amended Complaint.*fn1 (Id. at 21.)

II. Plaintiff's Motion

A. Grounds

Plaintiff seeks reconsideration pursuant to Rule 59 of the Federal Rules of Civil Procedure on grounds that he should have been permitted: 1) an opportunity to present and produce evidence before the Court dismissed his conspiracy claims, (see Pl.'s Mot. [Doc. No. 43] at 3-4); 2) leave to file a supplemental complaint pursuant to FED.R.CIV.P. 15(d) in order to address "ongoing" and subsequent constitutional violations arising at Salinas Valley State Prison since he initiated this action, (see Pl.'s Mem. or P&As in Supp. of Mot. [Doc. No. 43-1] at 1-2); and 3) an extension of time in which to attempt "re-service" of his Amended Complaint upon Defendant Reddy. (See Pl.'s Mot. at 1, 3; Pl.'s P&A's at 3.)*fn2

Plaintiff's Motion was filed without proof of service by mail on any Defendant or counsel for any Defendant. See FED.R.CIV.P. 5(a)(1)(D) (requiring "written motion[s], except one that may be heard ex parte" be "served on every party."), FED.R.CIV.P. 5(d)(1) ("Any paper after the complaint that is required to be served--together with a certificate of service--must be filed within a reasonable time after service."). Perhaps consequently, no Defendant has filed an Opposition.

B. Standard of Review

If a motion to reconsider is filed within [28] days of the district court's order on the motion to strike and/or dismiss, the court will treat the motion as a Rule 59(e) motion.*fn3 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005)). A Rule 59(e) motion is properly granted "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003).

"A motion for reconsideration under Rule 59(e) should not be granted, absent highly unusual circumstances." McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003). This type of motion seeks "a substantive change of mind by the court." Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)). Most significantly in relation to Plaintiff's case, "motions to reconsider are not vehicles permitting the unsuccessful party to 'rehash' arguments previously presented." United States v. Navarro, 972 F. Supp. 1296, 1299 (E.D. Cal. 1997) (rejecting "after thoughts" and "shifting of ground" as appropriate grounds for reconsideration under FED.R.CIV.P. 59(e)).

C. Application to Plaintiff's Case

Plaintiff first asks the Court to reconsider the dismissal of his conspiracy claims without leave to amend against Defendants Finander, Ball and Butcher on grounds that he should be permitted an "opportunity to present evidence" which would "remove doubt" that a conspiracy "did, in fact, exist." (Pl.'s Mot. at 2.)

As discussed in the Court's April 2, 2010 Order, however, a Motion to Dismiss brought pursuant to FED.R.CIV.P. 12(b)(6) determines simply whether the complaint contains enough factual content "to raise a reasonable expectation that discovery will reveal evidence" of the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The Court found that the vague Plaintiff's vague and conclusory allegations of conspiracy failed to meet this plausibility standard, and that to the extent they amounted to mere speculation, amending them would be futile. See April 2, ...


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