United States District Court, E.D. California
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION PURSUANT TO RULE 60(b)(6), (ECF No.
13)
LAWRENCE J. O’NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Plaintiff
Gilfredo Lopez (“Plaintiff”) is a federal
prisoner proceeding pro se and in forma
pauperis in this civil action pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff initiated this
action on June 16, 2014.
I.
Background
On
January 28, 2015, the Magistrate Judge issued findings and
recommendations that (1) Plaintiff’s claims against
staff at USP Big Sandy and USP Hazelton be dismissed, without
prejudice, based on improper venue; and (2) this action be
dismissed, with prejudice, for failure to state a claim upon
which relief may be granted against Warden Paul Copenhaver,
the Executive Staff, Administrative Remedy Coordinator K.
Rodriguez, Unit Manager Gardea, Case Manager Coles, Counselor
Scott, Counselor Lyons, and other unknown staff at USP
Atwater. The Findings and Recommendations were served on
Plaintiff and contained notice that any objections were to be
filed within fourteen (14) days after service. (ECF No. 9.)
On March 2, 2015, the Court granted Plaintiff a thirty-day
extension of time to file his objections. (ECF No. 11.) More
than thirty days passed and no objections were filed.
On
April 14, 2015, the Court conducted a de novo review of the
case and the file, and adopted the findings and
recommendations in full. (ECF No. 12.) The Court dismissed
the claims against staff at USP Big Sandy and USP Hazelton,
without prejudice, based on improper venue, and otherwise
dismissed the action for failure to state a claim upon which
relief may be granted. (Id. at 2.)
Currently
before the Court is Plaintiff’s motion for
reconsideration pursuant to Federal Rule of Civil Procedure
60(b)(6), dated December 17, 2015. (ECF No. 13.)
II.
Motion for Reconsideration Pursuant to Rule 60(b)(6)
Federal
Rule of Civil Procedure 60(b)(6) allows the Court to relieve
a party from an order for any reason that justifies relief.
Rule 60(b)(6) “is to be ‘used sparingly as an
equitable remedy to prevent manifest injustice and is to be
utilized only where extraordinary circumstances’”
exist. Harvest v. Castro, 531 F.3d 737, 749 (9th
Cir. 2008) (quoting Latshaw v. Trainer Wortham &
Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). The
moving party “must demonstrate both injury and
circumstances beyond his control.” Latshaw,
452 F.3d at 1103. In seeking reconsideration of an order,
Local Rule 230(j) requires a party to show “what 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
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the ... 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), and “ ‘[a] party seeking
reconsideration must show more than a disagreement with the
Court’s decision, and ‘recapitulation ...’
“ of that which was already considered by the court in
rendering its decision. U.S. 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 (D.N.J.1992)).
In his
motion, Plaintiff contends that on March 26, 2015, a few days
before his objections were due, he unexpectedly had major
surgery, and for a time was ill and on medications as a
result of the surgery. (ECF No. 13, p. 2.) He contends that
these matters prevented him from filing timely objections to
the findings and recommendations. Plaintiff states that had
he had an opportunity, he would have objected that his
complaint allegations sufficiently stated a claim that the
prison officials at USP Atwater impeded his access to the
courts regarding his claims of being assaulted at USP
Hazelton, in violation of his First Amendment rights.
(Id. at 5.) Plaintiff argues that the officials at
USP Atwater prevented him from bringing claims regarding
being assaulted at USP Hazelton, by stating that they did not
have his inmate complaints, and by not assisting him in
obtaining his complaints filed while he was housed at USP
Hazelton. (Id. at 5-6.) Plaintiff argues that the
failure to find that he stated a claim, and the denial of
leave to amend, was an abuse of discretion, clear error, and
manifest injustice.
Contrary
to Plaintiff’s arguments, the Court finds no grounds
for relief or reconsideration here. Plaintiff is correct that
inmates have a fundamental constitutional right of access to
the courts. Lewis v. Casey, 518 U.S. 343, 346
(1996); Phillips v. Hust, 588 F.3d 652, 655 (9th
Cir. 2009). Specifically, “prisoners have a right under
the First and Fourteenth Amendments to litigate claims
challenging their sentences or the conditions of their
confinement to conclusion without active
interference by prison officials.” Silva v. Di
Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011).
That
said, inmates are not entitled to a specific type of
grievance process. See Ramirez v. Galaza, 334 F.3d
850, 860 (9th Cir. 2003) (“[I]nmates lack a separate
constitutional entitlement to a specific prison grievance
procedure.”). In order to allege an access-to-courts
claim, the plaintiff must show an actual injury in the form
of a failure to access the courts for a non-frivolous claim.
Lewis v. Casey, 518 U.S. 343, 349-53 (1996) (an
access-to-courts claim requires plaintiff to show that
defendant’s conduct caused actual injury to a
non-frivolous legal claim). Thus, to bring a claim, the
plaintiff must have suffered an actual injury by being shut
out of court. Christopher v. Harbury, 536 U.S. 403,
415 (2002); Lewis, 518 U.S. at 351;
Phillips, 588 F.3d at 655.
Plaintiff’s
allegations failed to state a claim for denial of right of
access to the courts. He alleged that he made numerous
filings at USP Hazelton, prior to being transferred to USP
Atwater in October 2012. He inquired of various officials at
USP Atwater regarding continuing to exhaust his
administrative remedies regarding the assault complained
about at USP Hazelton. Counselor Scott and Administrative
Remedy Coordinator K. Rodriguez informed Plaintiff that there
was nothing in Plaintiff’s file regarding any filings
at USP Hazelton, and that they were either not tracked
because they were informal resolutions, or were not recorded.
Ms. Rodriguez also asserted that she contacted USP Hazelton
staff on Plaintiff’s behalf to inquire about the
filings, but they were nowhere in the record. Counselor Lyons
further informed Plaintiff that the filings were never logged
or answered, and that the filings were the responsibility of
the USP Hazelton staff. Warden Copenhaver at USP Atwater told
Plaintiff to continue to file his administrative remedies by
going through the proper chain of command.
Plaintiff’s
allegations, taken as true and given every reasonable
inference, do not state a claim against any of the USP
Atwater defendants for interfering with Plaintiff’s
access to the courts in violation of the First Amendment.
Plaintiff takes issue with the manner in which the USP
Atwater staff assisted him with tracking and obtaining the
grievances filed at USP Hazelton. But the prison internal
grievance procedure does not create any constitutional right.
If Plaintiff filed a claim in court against the staff at USP
Hazelton regarding the alleged assault there, the
availability of the grievance procedure would be relevant to
whether Plaintiff could proceed without exhausting his claims
through the prison procedure. But, even assuming there was
some fault in the manner the staff at USP Atwater assisted
Plaintiff with tracking and obtaining his grievances
previously ...