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Darryl Lee Dunsmore, Cdcr # Ad-6237 v. San Diego County Sheriff's Dep't

December 15, 2011

DARRYL LEE DUNSMORE, CDCR # AD-6237,
PLAINTIFF,
v.
SAN DIEGO COUNTY SHERIFF'S DEP'T, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT

[ECF No. 46]

I. PROCEDURAL HISTORY

On January 14, 2011, Plaintiff, a state inmate currently incarcerated at the California State Prison located in Lancaster, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In his original Complaint, Plaintiff alleges that his constitutional rights were violated when he was housed in the San Diego Central Jail. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). The Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). See Mar. 1, 2011 Order at 5-6. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. Plaintiff filed his First Amended Complaint on April 8, 2011. Plaintiff also filed a number of miscellaneous motions, along with four Motions for Temporary Restraining Order.

The Court, once again, screened Plaintiff's First Amended Complaint and ruled on all pending motions. See May 17, 2011 Order at 1-8. The Court took note of the fact that Plaintiff was adding new claims pertaining to allegations arising from the time Plaintiff was incarcerated at the Richard J. Donovan Correctional Facility ("Donovan"). Id. at 3. The Court denied Plaintiff's Motion for Appointment of Counsel, denied his Motions for a Temporary Restraining Order and dismissed his First Amended Complaint for failing to state a claim upon which § 1983 relief could be granted. Id. at 8. Plaintiff, once again, was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id.

On August 2, 2011, Plaintiff filed his Second Amended Complaint ("SAC"), along with a renewed Motion for Appointment of Counsel. Plaintiff also filed a renewed Motion for Temporary Restraining Order, along with two Motions for Relief from Judgment pursuant to FED.R.CIV.P. 60(b). The Court denied Plaintiff's Motion for Appointment of Counsel, Motion for Temporary Restraining Order, as well as Plaintiff's two Motions for Relief from Judgment. See Nov. 8, 2011 Order at 1-10. In addition, the Court conducted a sua sponte screening of Plaintiff's Second Amended Complaint which was dismissed for failing to state a claim upon which relief could be granted without leave to amend. Id. at 10.

Plaintiff has now brought a "Motion to Alter or Amend Judgment" pursuant to Federal Rules of Civil Procedure 59(e) [ECF No. 46].

II. PLAINTIFF'S MOTION

A. Grounds

Plaintiff seeks reconsideration pursuant to Rule 59 of the Federal Rules of Civil Procedure of the Court's November 8, 2011 Order dismissing his Second Amended Complaint for failing to state a claim. (See Pl.'s Mot. [ECF No. 46] at 1-4.). Specifically, Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs, they discriminated and relatiated against him, and they impeded his ability to exhaust his administrative remedies. (Id. at 1-2.)

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.*fn1 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. ...


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