United States District Court, N.D. California
CARLOS A. ORTEGA, Plaintiff,
A. FLORES, et al., Defendants.
ORDER DENYING REQUEST FOR RELIEF FROM JUDGMENT
PURSUANT TO FED. R. CIV. P. 60 RE: DKT. NO. 34
HATOOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
a closed civil rights case. Plaintiff, an insanity acquittee
at Napa State Prison, filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983 regarding events
that happened at Santa Clara County Jail (“SCCJ”)
where he was previously incarcerated. Dkt. No. 1. On November
27, 2019, the Court granted defendants' motion to dismiss
this action as time-barred and entered judgment in favor of
defendants. Dkt. Nos. 31, 32. On December 19, 2019, plaintiff
filed a motion requesting relief from a judgement or order,
pursuant to Fed.R.Civ.P. 60(a), which the Court construes as
a motion for reconsideration of the order of
dismissal. Dkt. No. 34. For the reasons set forth
below, the Court DENIES the motion for reconsideration.
the court's ruling has resulted in a final judgment or
order (e.g., after dismissal or summary judgment motion), a
motion for reconsideration may be based either on Rule 59(e)
(motion to alter or amend judgment) or Rule 60(b) (motion for
relief from judgment) of the Federal Rules of Civil
Procedure. See Am. Ironworks & Erectors v. N. Am.
Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001).
the denial of a motion for reconsideration under Rule 59(e)
is construed as a denial of relief under Rule 60(b), the
Court considers only whether plaintiff is entitled to
reconsideration pursuant to Rule 59(e). See McDowell v.
Calderon, 197 F.3d 1253, 1255 n.3 (9th Cir. 1999)
(citation omitted) (en banc). “Reconsideration 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.” School
Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993). Motions for reconsideration should not be
frequently made or freely granted; they are not a substitute
for appeal or a means of attacking some perceived error of
the court. See Twentieth Century - Fox Film Corp. v.
Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).
plaintiff argues that the Court has committed clear error in
finding that he was not entitled to equitable tolling
pursuant to Cal. Code Civ. Proc. § 352(a). Cal. Code Civ
Proc. § 352(a) provides that where a plaintiff lacks the
legal capacity to make decisions at the time the cause of
action accrued, the time during which the plaintiff lacks
legal capacity is not part of the time limited for the
commencement of the action. See Cal. Civ. Proc. Code
§ 352(a). Plaintiff argues that he is entitled to
tolling of the limitations period pursuant to Section 352(a)
because he was found not guilty by reason of insanity on May
7, 2007, and September 4, 2007, and because in a prior case,
Case No. 14-cv-03783, this Court did not find that
plaintiff's claims were time-barred. Plaintiff's
first argument was already considered and rejected in the
Court's order of dismissal. See Dkt. No. 31 at
7. A motion for reconsideration is not to be used as a
mechanism for the party to rehash unsuccessful arguments
already presented. See Maraziti v. Thorp, 52 F.3d
252, 255 (9th Cir. 1995) (citing Ackermann v. United
States, 340 U.S. 193, 199-201 (1950)). Plaintiff's
second argument is presented for the first time in his motion
for reconsideration. 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 the litigation.” Kona Enterprises, Inc.
v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
In addition, plaintiff's second argument is incorrect. In
Case No. 14-cv-03783, timeliness was not an issue and the
Court did not consider, much less make a determination
regarding, plaintiff's legal capacity to make decisions,
either at the time of the incidents alleged in Case No.
14-cv-03783 or on December 12, 2012 (the date of the incident
at issue in the instant action). The Court also did not
consider, or make a determination regarding, the timeliness
of Case No. 14-cv-03783. See generally Ortega v. Babasa,
et al., C No. 14-cv-03783 HSG (PR), Dkt. No. 45 (Sept.
3, 2015). In Case No. 14-cv-03783, the Court granted summary
judgment in favor of defendants with respect to the September
30, 2007 excessive force claim, and the parties later reached
settlement regarding the September 5, 2007 excessive force
claim. Ortega v. Babasa, et al., C No. 14-cv-03783
HSG (PR), Dkt. No. 45 (Sept. 3, 2015); Dkt. No. 85 (Apr. 6,
2017). Moreover, whether Case No. 14-cv-03783 was time-barred
has no bearing on whether this action is time-barred. Case
No. 14-cv-03783 arises out of a September 5, 2007 incident,
whereas the relevant incident in this action took place on
December 12, 2012. As discussed in the Court's November
27, 2019 order of dismissal, plaintiff has not presented
evidence from which it can be reasonably concluded that he
lacked the legal capacity to make decisions on December 12,
2012. Although plaintiff was found not guilty by reason of
insanity on May 7, 2007 and September 4, 2007, these findings
are not dispositive regarding plaintiff's legal capacity
to make decisions on December 12, 2012, and the December 5,
2012 psychological evaluation reported that since 2007,
plaintiff had been restored to competency for periods of
time. Dkt. No. 28-1 at 6-11.
Court finds that it did not commit clear error in dismissing
this action as time-barred and therefore DENIES the motion
for reconsideration, whether brought pursuant to Fed. R. Civ.
P 59(e) or Fed.R.Civ.P. 60(b).
reasons set forth above, plaintiff's motion for
reconsideration is DENIED. Dkt. No. 34. This case remains
order terminates Dkt. No. 34.
 Plaintiff brings the motion pursuant
to Fed.R.Civ.P. 60(a). Fed.R.Civ.P. 60(a) allows for
corrections of clerical mistakes in judgments, orders, or
other parts of the record. Because plaintiff argues that the
Court erred in finding that this action is time-barred, the
Court construes this motion as brought either pursuant to
Fed.R.Civ.P. 59(e), which allows for a judgment to be altered