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Ellington v. Clark


July 29, 2010


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge


Plaintiff Marcus R. Ellington ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint against Defendants Clark, Lunes, Reynoso, Polk, Diaz, and Jones for violation of the First and Fourteenth Amendments. Pending before the Court is Plaintiff's motion entitled "Plaintiff's motion for rehearing bu U.S. District Jukdge as to whether or not the plaintiff stated a cause of action against the director." The Court construes this as a motion for reconsideration of the Court's June 28, 2010 Order. (ECF No. 65.)

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), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule 230(j) requires a party to show the "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."

Plaintiff contends that he stated a cause of action against the Director of the CDCR. An examination of Plaintiff's second amended complaint, the operative pleading in this action, indicates that Plaintiff failed to name the Director of the CDCR as a defendant. Plaintiff was warned that an amended complaint supercedes a prior complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superseded pleading," Local Rule 220. Plaintiff's second amended complaint does not name the Director as a defendant.

Even if Plaintiff had named the Director as a defendant, Plaintiff would still fail to state a claim. Plaintiff contends that merely by appealing Defendants' alleged constitutional violation to the Director's level, the Director becomes liable. Plaintiff attempts to infer that the Director knew of and consented to the other Defendants' alleged constitutional violations. First, it is unclear whether the Director personally reviewed Plaintiff's grievances, and thus it is unclear whether the Director even had knowledge. Second, actions in reviewing an inmate grievance alone are not sufficient to demonstrate liability under § 1983. "Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation." George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). For a supervisory defendant to be liable, there must be either personal involvement or a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (per curiam) (citing Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc)).

Accordingly, Plaintiff's motion for reconsideration, filed July 22, 2010, is DENIED.



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