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McCoy v. Tate

United States District Court, E.D. California

March 29, 2017

DAVON ELIMU MCCOY, Plaintiff,
v.
DR. H. TATE, et al., Defendants.

          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

         Plaintiff 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.

         In separate filings, the parties objected to the findings and recommendations. (ECF Nos 32, 33.) The undersigned construes these objections as motions for reconsideration.

         I. Procedural Background and Undisputed Facts

         The 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 No. 27.)

         II. Legal Standards

         “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). “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....”

         III. Discussion

         A. Plaintiff's Motion for Reconsideration

         Plaintiff's 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.

         Plaintiff 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.

         Plaintiff 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).

         Since 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 he ...


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