United States District Court, N.D. California
ORDER RE: PLAINTIFF'S MOTION FOR RECONSIDERATION
AND MOTION TO CONTINUE Re: Dkt. Nos. 126, 127, 128, 129,
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
Joel Jennings Warne, proceeding pro se, alleges violations of
his civil rights as well as claims under state law relating
to medical treatment he received at San Francisco General
Hospital in 2015. Plaintiff's motions for reconsideration
of the Court's Order granting in part and denying in part
Defendant Dr. Andrea Tenner's motion to dismiss his
Second Amended Complaint (“SAC”) is now pending
before the Court. (Dtk. Nos. 126, 127 & 128.) Plaintiff
also filed a motion to continue the upcoming Case Management
Conference and the deadline for filing his Third Amended
Complaint, as well as objections to Defendants'
separately filed Case Management Conference Statement. (Dkt.
Nos. 129 & 132.) For the reasons discussed below,
Plaintiff's motions are DENIED.
seeking leave to file a motion for reconsideration must show
either: (1) “at the time of the motion for leave, a
material difference in fact or law exists from that which was
presented to the Court”; (2) “[t]he emergence of
new material facts or a change of law occurring after the
time of such order;” or (3) a “manifest failure
by the Court to consider material facts or dispositive legal
arguments” previously presented to the court. N.D. Cal.
Civ. L. R. 7-9(b), “No motion for leave to file a
motion for reconsideration may repeat any oral or written
argument made by the applying party in support of or in
opposition to the interlocutory order which the party...seeks
to have reconsidered.” N.D. Cal. Civ. L.R. 7-9(c).
“A 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.” 389 Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
contends that reconsideration is appropriate under the third
prong of Rule 7-9(b); that is, that the Court manifestly
failed to consider material facts and dispositive legal
arguments. Plaintiff has filed three separate briefs totaling
47-pages in support of his request for reconsideration. (Dkt.
Nos. 126, 127 & 129.) Plaintiff takes issue with various
portions of the Court's Order granting in part and
denying in part portions of Defendant Dr. Tenner's motion
to dismiss his SAC. (Dkt. No. 125.) In particular, Plaintiff
contends that (1) the Court mischaracterized the factual
allegations; (2) erred in its determination regarding the
applicability of California Government Code section 855.2;
(3) erred in dismissing his claim for false imprisonment; (4)
erred in dismissing his medical battery claim; and (5) erred
in dismissing his Section 1983 claim predicated on violation
of his First Amendment rights.
has not demonstrated that “highly unusual
circumstances” warrant reconsideration here. The facts
and arguments raised in Plaintiff's motions for
reconsideration either were or could have been presented to
the Court in the context of the briefing on the motion to
dismiss. Moreover, to a large extent, the motion reflects
Plaintiff's disagreement with the Court's
conclusions, rather than that the Court failed to consider
his arguments. Indeed, the Court denied the motion to dismiss
Plaintiff's medical negligence claim (thus his argument
regarding Section 855.2 is moot), and the Court held that
Plaintiff's medical battery and false imprisonment claims
were cognizable as medical negligence claims (which he has),
not intentional tort claims. Finally, the basis for the Court
ruling on Plaintiff's Section 1983 First Amendment claim
was that Plaintiff had failed to cure the pleading defects
from his prior complaint; namely, that he had not alleged a
plausible connection between his work as a labor
representative or whistleblower, to the medical treatment he
received from Dr. Tenner. The Court also commented on
Plaintiff's new allegations regarding forcible medication
in response to paranoid speech, but the Court did not, as
Plaintiff suggests, base its ruling on whether there is a
First Amendment right to paranoid speech. Further, the Court
allowed Plaintiff's Section 1983 claim under the Fourth,
Eighth, and Fourteenth Amendments, which is predicated in
part on his involuntary forced medication, to go forward in
the last round of briefing. (Dtk . No. 94.) Plaintiff's
motions for reconsideration are therefore DENIED.
extent that the motions also seek leave to file an immediate
appeal to the Ninth Circuit Court of Appeals, there is no
appeal as of right for such an interlocutory order.
See 28 U.S.C. 1291(“[t]he courts of appeals 
shall have jurisdiction of appeals from all final decisions
of the district courts of the United States); In re
Cement Antitrust Litig., 673 F.2d 1020, 1027 (9th Cir.
1982) (noting that as a general rule, a party may seek review
of a district court's rulings only after the entry of
final judgment). To the extent that Plaintiff requests that
the issues raised in his motion for reconsideration “be
certified for immediate appeal to the Ninth Circuit in
accordance with 12 U.S.C. § 1292(b) as doing so would
‘materially advance the ultimate termination of the
litigation'” (dkt. no. 128 at 39:3-6), Plaintiff
has failed to make the requisite showing under 1292(b). That
resolution of the issue may materially advance the ultimate
termination of the litigation is only part of the question.
An interlocutory appeal under 1292(b) is appropriate if the
order “involves a controlling question of law as to
which there is substantial ground for difference of opinion
and [ ] an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b). There is no controlling question of
law as to which there is substantial ground for difference of
opinion here. Further, “the legislative history of
1292(b) indicates that this section was to be used only in
exceptional situations in which allowing an interlocutory
appeal would avoid protracted and expensive
litigation.” In re Cement Antitrust Litig.,
673 F.2d at 1026. Accordingly, Plaintiff's request for
immediate appeal of the Court's Order and/or motion for
certification under 1292(b) is DENIED.
after Plaintiff filed his three motions for reconsideration,
on July 10, 2017, Plaintiff submitted multiple ex parte
requests including a request to continue the July 13, 2017
Case Management Conference, a request for an extension of
time to file his Third Amended Complaint which is due July
20, 2017, and a request to seal portions of the Declaration
of Julia-Hansen- Arenas filed in support of Defendants'
separately filed Case Management Conference Statement. (Dkt.
Nos. 129 & 132.) These ex parte requests are DENIED.
There is no good cause for continuing the Case Management
Conference, and Plaintiffs Third Amended Complaint is not due
until July 20 and the only amendment of the complaint
authorized is to add the Regents of the University of
California as a defendant because Plaintiff inadvertently
failed to include them in his SAC. Finally, Plaintiff has
failed to demonstrate that sealing is appropriate under Civil
previously scheduled Case Management Conference remains on
calendar for July 13, 2017 at 1:30 p.m. in Courtroom F, 450
Golden Gate Ave., San Francisco. The parties shall be
prepared to discuss a case schedule at that time.
Order disposes of Docket Nos. ...