United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR
RECONSIDERATION OF DENIAL OF MOTION FOR SUMMARY JUDGMENT OR
ALTERNATELY FOR ALBINO HEARING RE SUMMARY JUDGMENT
AND SETTING ALBINO EVIDENTIARY HEARING (ECF Nos.
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
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
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.)
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.)
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.)
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.)
January 19, 2018, Defendant Veloz filed a motion for
reconsideration. (ECF No. 133.) Plaintiff filed an opposition
on February 6, 2018. (ECF No. 134.)
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
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).
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).
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.”
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.
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
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.
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.
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).
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 ...