United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This Order addresses the majority of the motions, reports and recommendations, and objections pending before the Court.
I. Dkt. no. 135: MOTION FOR RECONSIDERATION
Pursuant to 28 U.S.C. § 1915A, the Court screened Plaintiff's amended complaint on January 25, 2013. (Dkt. no. 44.) The Screening Order stayed this case for ninety (90) days to allow the parties to participate in mediation. Plaintiff filed a number of motions, including a motion to reconsider (dkt. no. 56), during the ninety (90) day stay. These motions were denied without prejudice. (Dkt. no. 57.) At a hearing held on December 3, 2013, Plaintiff explained that he thought he had re-filed his motion to reconsider regarding the Screening Order after the ninety (90) day stay expired. The Court granted Plaintiff leave to re-file his motion to reconsider, which was re-filed as dkt. no. 135. (Dkt. no. 133).
B. Legal Standard
Plaintiff's motion for reconsideration asks the Court to reconsider its decision to dismiss certain claims and defendants, and to deny Plaintiff's motion for appointment of counsel. A motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this 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." Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). On the other hand, "[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled." Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005). A motion for reconsideration is properly denied when the movant fails to establish any reason justifying relief. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (holding that a district court properly denied a motion for reconsideration in which the plaintiff presented no arguments that were not already raised in his original motion).
C. Dismissal of Certain Claims and Defendants
In his amended complaint, Plaintiff alleges twenty-two (22) counts against sixtyfive (65) prison staff members at Ely State Prison ("ESP") and Northern Nevada Correctional Center ("NNCC"). (Dkt. no. 22.) The Court allowed Plaintiff to proceed fully on sixteen (16) counts and to proceed in part on counts 3, 10, and 22. (Dkt. no. 44 at 21.) The Court dismissed with prejudice the following five (5) counts: 11, 12, 14, 17, and 20. ( Id. ) The Court dismissed claims against eight (8) defendants, including Sergeant Sabaskey, because the allegations against them are made in connection with dismissed claims, or because Plaintiff made no allegations against them in the amended complaint. ( Id. at 20-21.)
Plaintiff argues that Sabaskey should not have been dismissed because his name appears on an emergency grievance and because Plaintiff's allegations in support of Count I are the same allegations raised in his initial complaint, where the Court permitted Sabaskey to be sued. (Dkt. no. 135 at 1.) The amended complaint alleges that "the sgt responded to an emergency grievance and ordered that [Plaintiff] be moved, Correctional Officer Rose didn't move me, left me in same cell." (Dkt. no. 22 at 6.) The emergency grievance form attached to the amended complaint had a circle over Sabaskey's signature, identifying Sabaskey as the sergeant who ordered Plaintiff to be moved to a different cell, but then failed to ensure the move was carried out. (Dkt. no. 7 at 4.) Plaintiff has offered a reason justifying reconsideration of the Screening Order. The Court agrees that Plaintiff has stated a claim in Count I against Sabaskey.
Next, Plaintiff argues that the Court erred in dismissing claims premised on interference with the grievance process. The gist of Plaintiff's argument is that because he is required to exhaust his administrative remedies before pursuing legal actions, prison staff's obstructive conduct impeded his constitutional right to access the courts. (Dkt. no. 135 at 3.) However, "there is no legitimate claim of entitlement to a grievance procedure." Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (prison regulations that "place no substantive limitations on official discretion" do not create a liberty interest entitled to due process protection). Thus, because Plaintiff does not have a separate constitutional right for his grievance to be processed in a certain way, the alleged interferences with Plaintiff's pursuit of his grievances cannot serve as a basis for liability under § 1983 as pleaded in this action.
If the prison conditions that Plaintiff seeks to grieve give rise to a constitutional claim, then Plaintiff may bring a § 1983 action even if prison staff obstructed his grievance. This is because the Prison Litigation Reform Act ("PLRA") requires an inmate like Plaintiff to either exhaust his available administrative remedies; or, if remedies are not available, an inmate does not need to exhaust them. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) ("The PLRA mandates that inmates exhaust all available administrative remedies before filing any suit challenging prison conditions, ' including, but not limited to, suits under § 1983. An inmate is required to exhaust only available remedies." (citation omitted)). In other words, Plaintiff must either (1) exhaust his administrative remedies before bringing claims that prison conditions violate his constitutional rights or (2) bring those claims if he can demonstrate that administrative remedies were not available to him. Examples of unavailable remedies include remedies that are screened by staff "for reasons inconsistent with or unsupported by applicable regulations, " Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010), and situations where remedies were "ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile." Albino, 747 F.3d at 1172 (citation and internal quotation marks omitted). If Plaintiff's grievances identify issues that raise constitutional violations, and if Plaintiff can show that alleged staff obstruction made the grievance process unavailable, then Plaintiff would not be foreclosed from accessing the courts. In that event, Plaintiff may elect to file a new lawsuit to allege these claims.
Plaintiff further argues that the documents referenced in count 20 were not returned. (Dkt. no. 135 at 8.) He claims that the amended complaint alleges that "misc.' documents were found/returned, aprox 5% of them, 95% stolen." ( Id. ) The amended complaint, however, does not support Plaintiff's allegation. The amended complaint alleges that "misc legal documents" were found and "they are returned." (Dkt. no. 22 at 48.) The Screening Order was based on allegations in the amended complaint and Plaintiff has not demonstrated that the Court made clear error in dismissing count 20.
Finally, Plaintiff contends that the Court made a mistake in reading his handwritten amended complaint with respect to the following defendants' names: caseworker Meares is erroneously identified as Means and Dr. Marr is erroneously identified as Dr. Mar. (Dkt. no. 135 at 2-3.) These defendants' names are correctly identified in the case caption and other filings. Plaintiff also requests that the Court change the name of Dr. ...