United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION AND DENYING MOTION FOR CERTIFICATION FOR
INTERLOCUTORY APPEAL (ECF No. 37)
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
Jose Luis Buenrostro (“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 Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
This action proceeds on Plaintiff's third amended
complaint against Defendant Fajardo for retaliation in
violation of the First Amendment, arising out of the blocking
of phone numbers, interference with typewriter access, and
false accusations regarding possession of a cell phone and
related strip searches. (ECF No. 36.) Plaintiff filed a
consent to Magistrate Judge jurisdiction on January 31, 2014.
(ECF No. 5.)
April 13, 2017, the Court issued a screening order finding
service of the third amended complaint appropriate as to
Defendant Fajardo, and dismissing all other claims and
defendants without prejudice for failure to comply with
joinder requirements under Federal Rules of Civil Procedure
18(a), 20(a)(2). (ECF No. 36.) On April 26, 2017, Plaintiff
filed the instant motion for reconsideration and/or motion
for certification for interlocutory appeal pursuant to 28
U.S.C. § 1292(b) of the Court's April 13, 2017
screening order dismissing certain claims and defendants.
(ECF No. 37.)
Plaintiff's Motion for Reconsideration
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) (internal
quotations marks and citation omitted). The moving party
“must demonstrate both injury and circumstances beyond
his control . . . .” Id. (internal quotation
marks and citation omitted). 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.”
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) (internal quotations marks and citations omitted), 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) (internal quotation marks and citation omitted).
argues that the Court erred in dismissing the other
defendants and claims in his third amended complaint.
Plaintiff notes that the Court found that he stated
cognizable claims in his second amended complaint against
Defendants DeVore, Fajardo, Dern, Pullings, Crank, and Knoll,
and therefore all of those claims and defendants should be
allowed to proceed in this action. Plaintiff reasserts that
he has stated in great detail in each of the first, second,
and third amended complaints that the defendants have
colluded and conspired to retaliate against him for filing a
civil action against their colleagues. Plaintiff argues that
“whether the named Defendants violated Plaintiff's
First Amendment right to grieve a wrong” will be a
question of law or fact common to all the named defendants in
this action. (ECF No. 37.)
has not shown any error in the Court's application of
Rule 20(a)(2) to the facts of this case. As noted previously,
multiple parties may be joined as defendants in one action
only if “any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences; and [ ] any question of law or
fact common to all defendants will arise in the
action.” Fed.R.Civ.P. 20(a)(2). Therefore, claims
against different parties may be joined together in one
complaint only if the claims have similar factual
backgrounds and have common issues of law or fact.
Coughlin v. Rogers, 130 F.3d 1348, 1350-51 (9th Cir.
the Court found that Plaintiff stated cognizable claims
against other named defendants in his second amended
complaint, this does not mean that such claims are
appropriate for joinder. Although Plaintiff asserts that each
defendant acted in accordance with an overriding conspiracy,
Plaintiff failed to plead sufficient factual allegations
establishing the existence of an express or implied agreement
among the defendants. See Ting v. United States, 927
F.2d 1504, 1512 (9th Cir. 1991). Plaintiff may not merely
assert the existence of a conspiracy to circumvent the
contention that each claim will raise a common question of
law regarding the violation of his First Amendment rights is
similarly unpersuasive. The mere fact that all of a
plaintiff's claims arise under the same general law does
not necessarily establish a common question of law or fact.
See Coughlin, 130 F.3d at 1351.
also fails to present a common question of fact by showing
that his claims against the remaining defendants arise out of
the same “transaction, occurrence, or series of
transactions or occurrences.” Fed.R.Civ.P. 20(a)(2).
The remaining claims present factual scenarios that differ
from the claim against Defendant Fajardo arising out of the
blocking of phone numbers, interference with typewriter
access, and false accusations regarding possession of a cell
phone and related strip searches. Were Plaintiff permitted to
proceed against all of the named Defendants in a single
action, the Court would still be required to give each claim
Plaintiff has failed to set forth grounds entitling him to
reconsideration of the Court's order dismissing ...