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William Barker v. R. Yassine

March 28, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



A partial motion to dismiss was filed on July 27, 2011 seeking dismissal of state law claims and one pursuant to the Americans with Disabilities Act (ADA), but not on the Eighth Amendment excessive force claim. When the motion was filed, as well as when the opposition and reply were filed, plaintiff was appearing pro se. The matter was submitted when the reply was filed on November 22, 2011. On December 8, 2011, attorneys Lynn Hubbard III, and Scottlyn Hubbard requested to be substituted into the case for purposes of representing plaintiff. Within the substitution request was a subsidiary request to permit an amended complaint to be filed in the case in lieu of the complaint originally filed, and an additional opposition to the motion to dismiss.

The undersigned filed an Order/Findings and Recommendation on defendant's motion to dismiss the complaint on January 6, 2012. Within the Order etc., the undersigned determined that the attorneys would be substituted in, and that the informal request to amend the complaint, as well as the additional, improperly filed opposition, would be considered "in an abundance of caution." The undersigned recommended that the claims based on state law be dismissed on account of not filing a "GCA" state administrative tort claim, and the ADA claim be dismissed without leave to amend for failure to state a claim.

Counsel filed a motion for reconsideration directed to the magistrate judge on February 1, 2012. The motion was brought on only two grounds:

(1) The time for filing of a timely GCA claim should have been equitably tolled*fn2 ;

(2) The ADA claim was improperly dismissed.

The undersigned determined to hear the reconsideration in court, and did so on March 15, 2012. For the reasons set forth below, plaintiff's motion for reconsideration is granted, but upon reconsideration, the undersigned affirms his initial Findings and Recommendations.

Factual Background

The undersigned will concisely present the factual background for purposes of the reconsideration motion. Plaintiff is a state prisoner proceeding with retained counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he is a disabled prisoner with hip, spine and shoulder injuries. On October 25, 2009, plaintiff was in his wheelchair when he was headed to the medical unit for routine treatment.*fn3 When plaintiff approached a gate, the sole defendant in this case, Yassine, a correctional officer, and plaintiff got in an argument concerning Yassine's questioning about plaintiff's reasons for going to the clinic. In this "attitude" contest, Yassine stated he was going to search plaintiff. As Yassine searched plaintiff in the wheelchair, he told plaintiff to lean forward and plaintiff complied. Yassine then allegedly pushed plaintiff forward even more until there was a loud pop and plaintiff cried out in pain and then later had to be treated for the injury. Plaintiff first alleges that Yassine acted out of spite and used excessive force in the search, i.e., acted maliciously and sadistically for the very purpose of causing harm. He then alleges in the alternative that the search violated the ADA, i.e., that the search was performed in violation of the ADA as well as state law ADA type claims.*fn4

Motion for Reconsideration

Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances [which] were not shown upon such prior motion, or what other grounds exist for the motion." The rule derives from the "law of the case" doctrine which provides that the decisions on legal issues made in a case "should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice." Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).

Courts construing Federal Rule of Civil Procedure 59(e), providing for the alteration or amendment of a judgment, have noted that a motion to reconsider is not a vehicle permitting the unsuccessful party to "rehash" arguments previously presented, or to present "contentions which might have been raised prior to the challenged judgment." Costello v. United States, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991); see also F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa. 1991). These ...

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