United States District Court, E.D. California
ORDER DENYING MOTION FOR RECONSIDERATION (ECF No. 80)
LAWRENCE J. O'NEILL, District Judge.
I. PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. (ECF No. 31.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On February 13, 2015, the Magistrate Judge issued Findings and Recommendations to grant Defendants' motion for summary judgment. (ECF No. 73.) Plaintiff objected, (ECF No. 77), and the undersigned adopted the findings and recommendations in full on March 30, 2015. (ECF No. 78.)
Before the Court is Plaintiff's motion for reconsideration. (ECF No. 80.)
II. LEGAL STANDARD
"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). "A motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised in earlier litigation." Id . Moreover, "recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j) requires that a party seeking reconsideration show that "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...."
A. Plaintiff's Claims
The action proceeds against Defendant Loadholt on Plaintiff's First Amendment retaliation claim. (ECF No. 31.) Plaintiff's claims may be summarized essentially as follows:
Plaintiff alleges that Defendant, a nurse practitioner, signed an order requiring Plaintiff to take his cholesterol medication by "directly observed therapy" (DOT) in retaliation for Plaintiff's grievance against her.
At an appointment with Loadholt on May 5, 2008, Plaintiff complained that he had not been notified of a change in the brand of his cholesterol medication. Although the parties characterize Plaintiff's attitude at the appointment differently, and dispute whether or not Plaintiff expressly refused to take the new medication, they agree that Plaintiff walked out of the appointment before it ended.
That day, Loadholt signed an order requiring Plaintiff to take the medication by "directly observed therapy" (DOT), that is, at the pill window, for three months. (ECF No. 61-5, at 17.) The next day, on May 6, Plaintiff filed a grievance against Loadholt for her unprofessional bedside manner. He withdrew his grievance several weeks later, after Dr. Ulit allegedly informed him that he would be allowed to keep his cholesterol medication on his person (KOP). Plaintiff had one more appointment with Loadholt, several weeks after the first appointment, during which she informed him verbally of the DOT order.
Plaintiff did not, apparently, obtain his medication KOP until sometime in the fall. Plaintiff grieved the issue, and the October 2008 decision granting the grievance indicated that Plaintiff's medication profile "stipulates that this medication is to be KEPT ON PERSON' (KOP), and the inmate/patient will not be required to acquire this medication through the medication line." (ECF No. 61-5, at 60.) The decision did not specify whether Plaintiff was being required to take his medication by DOT in contravention of his medication profile, or whether the problem had already been corrected by the time the decision issued. The decision also cited a California regulation prohibiting reprisals against inmates for filing appeals, ( Id., at 61), but did ...