ORDER DENYING G PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 39)
ORDER DENYING AS MOOT ALL PENDING MOTIONS(Docs. 40, 41, 42)
I. Plaintiff's Motion for Reconsideration
Plaintiff Gregory Downs ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 22, 2009. (Doc. 1). On September 11, 2009, the Court screened the complaint and dismissed the complaint with leave to amend. (Doc. 13). Plaintiff filed the first amended complaint on April 5, 2010. (Doc. 22). On July 20, 2010, and October 29, 2010, Plaintiff filed motions to amend the complaint (Docs. 30, 32) and on November 18, 2010, Plaintiff's second amended complaint was submitted and lodged. (Doc. 33). On May 11, 2011, the Court granted Plaintiff's request to amend the complaint, screened Plaintiff's second amended complaint submitted on November 18, 2010, and dismissed action without prejudice for failure to state a claim. (Doc. 37). On May 23, 2011, Plaintiff filed a motion for reconsideration. (Doc. 39).
Under Federal Rule of Civil Procedure 59(e), a party may move to
have the court amend its judgment within twenty-eight days after entry
of the judgment. Fed. R. Civ. P. 59(e). 'Since specific grounds for a
motion to amend or alter are not listed in the rule, the district
court enjoys considerable discretion in granting or denying the
motion.' Allstate Ins. Co. v. Herron , 634 F.3d
1101, 1111 (9th Cir. 2011) (quoting McDowell v.
Calderon , 197 F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc)
(per curiam)). But amending a judgment after its entry remains 'an
extraordinary remedy which should be used sparingly.' Id.
In general, there are four basic grounds upon which a Rule
59(e) motion may be granted: (1) if such motion is necessary to
correct manifest errors of law or fact upon which the judgment rests;
(2) if such motion is necessary to present newly discovered or
previously unavailable evidence; (3) if such motion is necessary to
prevent manifest injustice; or (4) if the amendment is justified by an
intervening change in controlling law. Id.
In his motion for reconsideration, Plaintiff argues that the Court did not provide him a deadline to file an objection to the magistrate judge's findings and recommendations. However, on May 4, 2009, Plaintiff consented to magistrate jurisdiction and, therefore, dispositive motions need not be address through findings and recommendations. Local Rule 302.
In his motion for reconsideration, Plaintiff directs the Court to one of his previous habeas actions which addressed the same issues raised in this case and where Defendants argued that the action should be filed as a § 1983 action. (Doc. 39 at 1-2 citing Downs v. California Board of Prison Terms II , 3:10-cv-02029-H-MDD (dismissed April 28, 2011)). Plaintiff argues that his claim is appropriately a civil rights claims as it is challenging the due process he received premised on the California Board of Prison Terms' failure to turn over exculpatory evidence for Plaintiff's parole consideration hearings. However, Plaintiff has already brought the same claims in another § 1983 action in which the court dismissed Plaintiff's action as barred pursuant to Heck v. Humphrey , 512 U.S. 477 (1994). Downs v. Sacramento Dist. Attorney Office , No. 2:09-cv-1105-KJN, 2010 WL 2765895 (E.D. Cal. July 13, 2010).
As with this instant action, in Downs v. Sacramento Dist. Attorney Office Plaintiff alleges various due process violations in the course of various parole hearings, primarily related to efforts to obtain exculpatory evidence for presentation at his parole hearing . Plaintiff claims his conviction was obtained through the use of perjured testimony, but seeks monetary damages for defendants' alleged reliance on perjured testimony and Board Commissioners' failure to obtain exculpatory evidence to consider during his parole hearing in violation of his due process rights.
Downs v. Sacramento Dist. Attorney Office , No.
2:09-cv-1105-KJN, 2010 WL 2765895 at *1 (E.D. Cal. July 13, 2010). The
court in Downs v. Sacramento Dist. Attorney Office
distinguished the facts and findings in the case from that of the
Wilkinson v. Dotson , 544 U.S. 74 (2005). The court
in Downs v. Sacramento Dist. Attorney Office
The Supreme Court decision in Wilkinson v. Dotson, 544 U.S. 74,
125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), permitting
a § 1983 plaintiff to challenge parole procedures, is distinguishable.
In Dotson , the Court held that the lawsuit was
permissible because the prisoner's claim did not "necessarily spell
speedier release" but merely would have resulted in a new hearing.
Id. at 82. Here, by contrast, plaintiff is
asserting, essentially, that he would not have been convicted had the
perjured testimony not been used, or, on the other hand, he would have
been earlier paroled had the parole board received the alleged
exculpatory evidence demonstrating his conviction was wrongfully
Downs v. Sacramento Dist. Attorney Office , No. 2:09-cv-1105-KJN, 2010 WL 2765895 at *3 (E.D. Cal. July 13, 2010).
The Court agrees with the analysis and conclusions set forth in
Downs v. Sacramento Dist. Attorney Office , and
therefore does not find reconsideration warranted in this action.
Moreover, even if the Court were to grant reconsideration, the action
would be barred by res judicata *fn1 as
Plaintiff's current case re-litigates claims previously decided on the
merits in Downs v. Sacramento Dist.
Attorney Office , No. 2:09-cv-1105-KJN, 2010 WL 2765895 and many of the Defendants would be ...