United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION RE: DKT. NO. 127
J. DAVILA UNITED STATES DISTRICT JUDGE
moves for reconsideration of this Court's order granting
Defendants Tafesse, Vasquez, and Kim's motion for summary
judgment with respect to Plaintiff's deliberate
indifference claim. Plaintiff's motion will be
DENIED. I. BACKGROUND The
facts remain disputed. Both parties, however, agree that on
January 29, 2012, at Hercules Police Department
(“HPD”) a blood draw occurred after which
Plaintiff was taken to the Martinez Detention Facility.
Facts According to Plaintiff
Plaintiff claims he was taken to the HPD booking room and
then handcuffed to a bench. See Narcisse Decl.
¶ 45, Dkt. No. 95. About an hour later, he was ordered
to sit “like a seesaw” on the bench, with his
right leg, knee, arm and shoulder pressed against a concrete
wall. Id. ¶¶ 62-63. He was put into a
“lock position” by Officer Kim and was unable to
move his arms. Id. ¶ 64. Before the blood draw,
Defendants did not ask Plaintiff if he had any allergies, or
blood, heart or other relevant conditions that would make a
blood draw dangerous. Id. ¶ 67.
Plaintiff alleges that Defendant Kim pushed his face and
right shoulder against the concrete wall. Id. ¶
71. Defendant Kim continued to slam and squeeze Plaintiff
against this wall. Id. ¶ 73. Defendant Tafesse
then punched Plaintiff on the back of his head, back, ribs,
stomach, pelvis, and hips. Id. ¶ 74. Defendant
Vasquez next punched Plaintiff several times over the head.
Id. ¶ 75. This resulted in Plaintiff's
“nose slit” opening and several contusions to his
head and body. Id.
further contends that he had an asthma attack due to the
blood draw, beating, and restraint. Id. ¶ 80.
He faded in and out of consciousness, convulsing, while
repeating “in a faint voice” that he could not
breathe and needed medical attention. Id. But,
Defendants did not offer him medical attention and
intentionally denied him this attention. Id. ¶
January 30, 2012-the day after the attack-Plaintiff was
released on bail and went to the Emergency Room of Contra
Costa Hospital for medical treatment. Id. ¶
104. Because of these events, Plaintiff now suffers from
sleep apnea with an increase of heart disease, stroke, and
hypertension. Id. ¶ 106.
Facts According to Defendants
Defendants allege that Plaintiff was verbally abusive and
repeatedly refused to sit down, despite requests, for the
blood draw. See Tafesse Decl. ¶ 12, Dkt. No.
80. When the phlebotomist arrived, Plaintiff declined to stay
seated and yelled that he would not comply. Id.
Because of this verbal and physical noncompliance, Defendant
Tafesse believed Plaintiff posed a threat of harm to himself,
to officers, and to the phlebotomist. Id. So,
Defendants Vasquez and Kim held Plaintiff to the bench to
complete the blood draw. Id. ¶ 13. Defendants
used just enough force to secure Plaintiff for the blood draw
and released Plaintiff once the blood was collected.
sustained a small bruise above his right eyebrow and a small
cut on the bridge of his nose from being held down for the
blood draw. Id.
31, 2018, this Court issued an order denying in part
Defendants' Motion for Summary Judgment. There, the Court
granted summary judgment for the deliberate indifference
claim but denied summary judgment for Plaintiff's Fourth
Amendment (excessive force and unreasonable search and
January 25, 2019, as required by Local Rule 7-9(a), Plaintiff
moved for leave to file a motion for reconsideration. On
January 29, 2019, this Court granted Plaintiff leave to file
this motion due to “good cause, ” but only
regarding the Court's grant of summary judgment to
Defendants on Plaintiff's Fourteenth Amendment deliberate
indifference claim. The Court now rules on Plaintiff's
Motion for Reconsideration.
Motion for Reconsideration
of a final judgment, order, or proceeding is appropriate if
the district court (1) is presented with newly discovered
evidence; (2) committed clear error or the initial decision
was manifestly unjust; or (3) if there is an intervening
change in controlling law. See, e.g., School
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993); see also Fed. R.
Civ. P. 60(b) (listing these, and additional, grounds for
reconsideration of an order). However, absent these three
things, “a motion for reconsideration should not be
granted, absent highly unusual circumstances.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003) (quoting Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). 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 ...