United States District Court, S.D. California
SCOTT F. FIALHO, Plaintiff,
G. HERRERA, et al, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION [Doc. No. 28]
MICHAEL M. ANELLO United States District Judge
Scott Fialho, a state prisoner proceeding pro se,
brings this civil rights action pursuant to 42 U.S.C. §
1983. See Doc. No. 1. Defendant G. Herrera
previously moved for summary judgment pursuant to Federal
Rule of Civil Procedure 56, arguing that Plaintiff failed to
exhaust his administrative remedies prior to filing this
lawsuit, as required by the Prison Litigation Reform Act
(“PLRA”). See 42 U.S.C. § 1997e(a).
See Doc. No. 20. The Court denied Defendant's
motion. See Doc. No. 26. Defendant moves for
reconsideration. See Doc. No. 28. Defendant argues
that the Court erred in applying the Ninth Circuit's
holding in Brown v. Valoff, 422 F.3d 926 (9th Cir.
2005), to find that Defendant failed to meet her burden to
show that Plaintiff did not fully exhaust his administrative
remedies. To date, Plaintiff has not filed an opposition to
Defendant's motion. For the reasons set forth below, the
Court DENIES Defendant's motion.
to Federal Rule of Civil Procedure 59(e), district courts
have the power to reconsider a previous ruling or entry of
judgment. Fed.R.Civ.P. 59(e). A motion under Rule 59(e) seeks
“a substantive change of mind by the court.”
Tripati v. Henman, 845 F.2d 205, 205 (9th Cir.
1988). Rule 59(e) is an extraordinary remedy and, in the
interest of finality and conservation of judicial resources,
should not be granted absent highly unusual circumstances.
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003); McDowell v. Calderon, 197 F.3d 1253, 1255
(9th Cir. 1999). Rule 59 may not be used to re-litigate old
matters, raise new arguments, or present evidence that could
have been raised prior to entry of the judgment. Exxon
Shipping Co. v. Baker, 544 U.S. 471, 486-87 (2008).
Rule 59(e), it is appropriate to alter or amend a previous
ruling if “(1) the district court is presented with
newly discovered evidence, (2) the district court committed
clear error or made an initial decision that was manifestly
unjust, or (3) there is an intervening change in controlling
law.” United Nat. Ins. Co. v. Spectrum Worldwide,
Inc., 555 F.3d 772, 780 (9th Cir. 2009). To carry the
burden of proof, a moving party seeking reconsideration must
show more than a disagreement with the Court's decision
or a recapitulation of the cases and arguments previously
considered by the court. See United States v. Westlands
Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
Court previously found that Defendant Herrera did not met her
burden of proving that Plaintiff failed to exhaust his
available administrative remedies prior to filing this
lawsuit. Defendant now argues that because Plaintiff
“did not raise the issue of available remedies, there
was no reason for Defendant to have addressed the issue in
reply.” Doc. No. 28 at 2. However, it is well-settled
in this circuit that the “failure to exhaust
administrative remedies is an affirmative defense that
the defendant must plead and prove in a
PLRA case.” Albino v. Baca, 747 F.3d 1162,
1176 (9th Cir. 2014) (emphasis added). This includes
demonstrating “that there was an available
administrative remedy, and that the prisoner did not exhaust
that available remedy.” Id. at 1172.
Therefore, Defendant should have addressed the availability
of remedies in her moving papers. She did not, and a motion
for reconsideration “is not a vehicle for . . . taking
a ‘second bite at the apple.'” Sequa
Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).
further contends that the Court erred in relying upon the
Ninth Circuit's decision in Brown v. Valoff,
supra, to reach its conclusion in this case.
Defendant asserts that the Court instead should have relied
upon the district court's ruling in Cunningham v.
Ramos, 2011 U.S. Dist. LEXIS 85997 (N.D. Cal. Aug. 3,
2011), to find that Plaintiff did not exhaust his available
remedies. Defendant's argument is unavailing. The Ninth
Circuit's statement of the law in Brown is
controlling, whereas an unpublished district court decision
applying that law is, at best, instructive. Moreover, the
district court's reasoning in Cunningham has
been rejected explicitly by several courts. See Willard
v. Sebok, 2016 U.S. Dist. LEXIS 58180, at *17 (C.D. Cal.
Mar. 18, 2016) (citing Branch v. Umphenour, 2015
U.S. Dist. LEXIS 118633 (E.D. Cal. Sep. 4, 2015) and
Graham v. Runnels, 2012 U.S. Dist. LEXIS 103249
(S.D. Cal. July 24, 2012)).
Defendant submits the declaration of R. Robinson, the Chief
of the Inmate Correspondence and Appeals Branch, as evidence
of the remedies which remained available to Plaintiff and
required further exhaustion. However, this evidence should
have been submitted in support of Defendant's motion in
the first instance, and does not provide grounds for
reconsideration at this juncture. See Kona Enters., Inc.
v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)
(holding that 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 earlier in
reviewed its previous ruling, the Court is satisfied that it
committed no error. Plaintiff has not provided any newly
discovered evidence. Additionally, there has been no
intervening change in controlling law. Accordingly, the Court
DENIES Defendant's motion for