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Washington v. Fresno County Sheriff

United States District Court, E.D. California

February 21, 2018

PERRY WASHINGTON, et al, Plaintiffs,
FRESNO COUNTY SHERIFF, et al., Defendants.


         Currently before the Court is Defendant Tony Veloz' motion for reconsideration of the denial of a motion for summary judgment, and alternately, for Albino hearing re summary judgment.

         The Court heard oral arguments on February 21, 2018. Counsel William Schmidt appeared telephonically for Plaintiff and counsel Scott Hawkins appeared for Defendant. For the reasons discussed herein, the Court grants Defendant's motion for reconsideration and finds that there are disputes of fact which require an Albino evidentiary hearing. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). An evidentiary hearing is set for April 10, 2018, at 9:00 a.m. to hear all evidence related the issue of whether Plaintiff's complaint should be dismissed for failure to exhaust all available administrative remedies prior to filing this lawsuit.[1]



         Plaintiffs Perry Washington and Anthonia Washington filed this action on January 29, 2014. (ECF No. 1.) On February 3, 2014, the complaint was stricken from the record as it was unsigned. (ECF No. 4.) A signed complaint was filed on February 11, 2014. (ECF No. 6.) On February 18, 2014, Plaintiff's complaint was dismissed with leave to amend for failure to state a claim. (ECF No. 7.) On February 25, 2014, a first amended complaint was filed which was stricken as not being signed by Plaintiff Perry Washington. (ECF Nos. 11, 22.)

         A first amended complaint (“FAC”) was filed on April 2, 2014. (ECF No. 27.) Plaintiff's first amended complaint was screened on April 8, 2014, and findings and recommendations issued recommending dismissing certain claims and parties. (ECF No. 26.) The district judge adopted the findings and recommendations in part and this action is proceeding against Defendant Veloz for deliberate indifference under the Eighth Amendment and retaliation under the First Amendment. (ECF Nos. 43, 62.) On April 5, 2016, Plaintiff was appointed counsel after he was declared to be incompetent in his state criminal action. (ECF No. 92.)

         On October 9, 2017, Defendant Veloz filed a motion for summary judgment. (ECF No. 114.) Plaintiff filed an opposition to the motion for summary judgment on November 14, 2017. (ECF No. 116.) In response to the Court's order striking unsigned exhibits from the opposition, Plaintiff filed an amended memorandum of points and authorities in opposition to the motion for summary judgment on November 20, 2017. (ECF No. 122.) On December 1, 2017, Defendant filed a reply to Plaintiff's opposition. (ECF No. 123.)

         On December 6, 2017, an order issued denying Defendant Veloz' motion for summary judgment. (ECF No. 125.) The Court found that Defendant Veloz had not met his burden to demonstrate that Plaintiff failed to exhaust administrative remedies; genuine issues of material fact exist to preclude summary judgment on the deliberate indifference and retaliation claims; Defendant Veloz is not entitled to qualified immunity; and sufficient facts are alleged to support a jury finding that the actions of Defendant Veloz were malicious, wanton or oppressive conduct to support a punitive damages award. (Id.)

         On January 19, 2018, Defendant Veloz filed a motion for reconsideration. (ECF No. 133.) Plaintiff filed an opposition on February 6, 2018. (ECF No. 134.)



         Defendant seeks reconsideration under Rule 54(b) of the Federal Rules of Civil Procedure which allows courts to revise orders “at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”

         “It is a basic principle of federal practice that ‘courts generally . . . refuse to reopen what has been decided. . . .” Magnesystems, Inc. v. Nikken, Inc., 933 F.Supp. 944, 948 (C.D. Cal. 1996) (quoting Messinger v. Anderson, 225 U.S. 436, 444 (1912)). Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). “ ‘A party seeking reconsideration must show more than a disagreement with the Court's decision, and ‘recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.' ” United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (citations omitted). Motions for reconsideration are not the place for the parties to raise new arguments that were not raised in their original briefs, nor is reconsideration to be used to ask the district court to rethink what it already thought. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003).

         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.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal punctuation and citations omitted); Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

         Requests for reconsideration are also governed by Local Rule 230(j) which provides that a party seeking reconsideration must set forth the material facts and circumstances surrounding the motion for reconsideration, including “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;” and “why the facts or circumstances were not shown at the time of the prior motion.”



         Defendant Veloz contends that the Court erred in drawing the distinction between the term administrative remedies and administrative process in applying the holdings of Booth v. Churner, 532 U.S. 731 (2001), and Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005). Defendant argues that the evidence in the record when viewed according to the correct holdings under this applicable law supports that some remedy remains. Further, Defendant believes that this error adversely affected the Court's burden shifting analysis as set forth in Albino, and impermissibly considered Plaintiff's claim that the “inmate assault could not be undone” as proper support for his claim that no further relief was available to him and therefore pursuing administrative remedies was futile. Defendant argues that at a minimum an Albino hearing should be set to resolve the dispute over the issue.

         Plaintiff responds that Defendant now argues that the focus should be on the process and not whether Plaintiff had any hope of an actual remedy from the jail for the violation of his constitutional rights. Plaintiff further argues that the grievance process at the Fresno County Jail was less than optimal and akin to useless. Additionally, Plaintiff contends that there is evidence in the record that in all likelihood he was mentally impaired during the relevant time period and compliance with the jail's process was beyond his capacity. Finally, Plaintiff contends that the process was unavailable to him due to the actions and statements of Defendant Veloz.

         Defendant again replies that Plaintiff argues issues that have already been established by the undisputed facts in this matter. Defendant contends that administrative remedies were available, and Plaintiff has not shown that his action on January 27, 2014 prevented Plaintiff from completing the first steps of the administrative process.

         A. Administrative Remedies

         Defendant contends that the Court erred because he showed the availability of the administrative process itself and it was clear error to hold otherwise. While the Court would agree that the case law relied upon by Defendant stands for the proposition that generally the availability of the administrative process is sufficient to require an inmate to exhaust administrative remedies, to prevail on summary judgment may require more than merely showing that the administrative process was available.

         The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such administrative remedies as are available” before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __, 136 S.Ct. 1850 (June 6, 2016) (“An inmate need exhaust only such administrative remedies that are ‘available.' ”). Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.' Once that is no longer the case, then there are no ‘remedies . . . available, ' and the prisoner need not further pursue the grievance.” Brown, 422 F.3d at 935 (citing Booth, 532 U.S. at 739). This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth, 532 U.S. at 741, and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).

         In Booth, the Supreme Court specifically decided what was meant by the phrase available administrative remedies. 532 U.S. at 736. The court found that “ ‘such administrative remedies as are available' ” naturally requires a prisoner to exhaust the grievance procedures offered, whether or not the possible responses cover the specific relief the prisoner demands.' ” Id. at 738. By changing the language of the statute from the requirement to exhaust effective administrative remedies, Congress manifested an ...

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