United States District Court, E.D. California
ORDER (1) CONVERTING FINDINGS AND RECOMMENDATIONS TO
ORDER; (2) DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION; (3) GRANTING DEFENDANTS' MOTION FOR
EVIDENTIARY HEARING; AND (4) SETTING EVIDENTIARY HEARING (ECF
NOS. 20, 27, 32, 33)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. On February 28, 2017, the undersigned issued
findings and recommendations to grant in part Defendants'
motion for summary judgment for Plaintiff's failure to
exhaust his administrative remedies. (ECF Nos. 20, 27.) This
action has since been reassigned to the undersigned pursuant
to the consent of the parties. (ECF No. 31.) Accordingly, the
findings and recommendations will be converted to an order.
separate filings, the parties objected to the findings and
recommendations. (ECF Nos 32, 33.) The undersigned construes
these objections as motions for reconsideration.
Procedural Background and Undisputed Facts
procedural background and undisputed facts set forth in the
February 28, 2017, findings and recommendations, herein
converted to an order, are incorporated by reference. (ECF
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). “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. Furthermore,
“‘[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)).
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....”
Plaintiff's Motion for Reconsideration
motion seeks reconsideration of that portion of the February
28, 2017, Order finding that Plaintiff did not exhaust his
administrative remedies as to his claim against Dr. Tate, a
complaint premised on this Defendant's July 2012
discontinuation of Plaintiff's seizure and pain
medication and withdrawal of a walking cane chrono. The Court
held that Plaintiff failed to properly exhaust a July 2012
appeal addressing Dr. Tate's conduct, and Plaintiff's
later attempt to reassert his claim against Dr. Tate in
October 2012 was properly dismissed as untimely.
now repeats the arguments he made in his opposition to
Defendants' motion, namely, that he did not exhaust his
administrative remedies as to the July 2012 appeal because
Dr. Tate improperly canceled it beyond his authority and
because the cancelation was based on the false assertion that
Plaintiff refused to be interviewed. These arguments were
previously found unpersuasive, and the Court sees no reason
to revisit them.
also makes a related argument that he was prevented from
resubmitting his appeal for further review in light of the
cancelation. In support, Plaintiff cites to 15 CCR §
3084.6(e), but that section states only that “Once
cancelled, an appeal shall not be accepted except
pursuant to subsection 3084.6(a)(3) ….”
(Emphasis added.) Subsection 3084.6(a)(3) then provides that
“At the discretion of the appeals coordinator or third
level Appeals Chief, a cancelled appeal may later be accepted
if a determination is made that cancellation was made in
error or new information is received which makes the appeal
eligible for further review.” Indeed, the letter
accompanying the canceled appeal at issue in this case
stated: “If you wish to appeal this action you may do
so by submitting a separate appeal, attaching these
documents, and citing the reasons you believe the appeal
should not be canceled. You must adhere to the 14-calendar
day limitation per CCR, Title 15, Section 3084.6(b)(3) when
resubmitting.” Decl. of J. Long in Supp. Defs.'
Mot. Summ. J. Ex. B (ECF No. 20-3 at 15).
Plaintiff did not resubmit his appeal within the 14-day
period raising any of the issues he raises here concerning
the propriety of the cancelation, the Court again finds that