1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR., Case No.: 21CV162-GPC(BGS)

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION; GRANTING MOTION TO RETAX COSTS; 14 MARCUS POLLARD, Warden; DENYING MOTION FOR THE KATHLEEN ALLISON, Secretary of the 15 APPOINTMENT OF COUNSEL California Department of Corrections and

16 Rehabilitation; and JOHN DOES 1-6, [ECF Nos. 102, 105] 17 Defendants. 18 19 Before the Court is Plaintiff Henry A. Jones, Jr.’s motion for reconsideration and 20 what the Court construes to be a motion to retax costs. ECF No. 102. Defendant Marcus 21 Pollard filed a response in opposition, ECF No. 106, and Plaintiff replied, ECF No. 109. 22 Also before the Court is Plaintiff’s third motion requesting the appointment of counsel. 23 ECF No. 105. The Court finds the matter suitable for decision based upon the papers and 24 vacates the hearing scheduled for October 27, 2023. Based on the reasoning below, the 25 Court DENIES the motion for reconsideration, GRANTS the motion to retax costs, and 26 DENIES the motion to appoint counsel as moot. 27 28 1 Background 2 On January 27, 2021, Plaintiff, a state prisoner proceeding pro se, filed a civil 3 rights complaint under

alleging that Pollard―warden of the prison 4 where Plaintiff was previously incarcerated―and others failed to prevent the spread of 5 COVID-19 in the prison and quarantined COVID-19 positive inmates in the mental 6 health building where Plaintiff was housed, allegedly causing Plaintiff to be infected with 7 COVID-19. ECF No. 1. Plaintiff moved to proceed in forma pauperis (“IFP”), ECF No. 8 2, but the Court denied the motion because Plaintiff was barred from proceeding IFP 9 pursuant to

(g) because he had previously filed multiple civil suits that 10 had been dismissed for failure to state a claim, ECF No. 5. Plaintiff subsequently paid 11 the filing fee. ECF No. 9. 12 After overcoming a motion to dismiss as to Defendant Pollard, ECF No. 39, 13 Plaintiff moved to amend his complaint “only changing jurisdiction to American 14 Disability Act,” ECF No. 66 at 1. What precisely Plaintiff sought to add to his complaint 15 is unclear, but his motion references being housed in a higher level security prison than 16 necessary and receiving insufficient services for his mental illness.

The government 17 opposed the motion to amend, arguing that Plaintiff was attempting to add unrelated 18 claims, ECF No. 69 at 1―which prompted Plaintiff to move to withdraw the motion to 19 amend and explain that he did not mean to add new defendants or new claims, ECF No. 20 70 at 1. The Court granted the motion to withdraw. ECF No. 71. 21 The complaint proceeded to summary judgment against only Defendant Pollard 22 (“Defendant”) on the claim that he violated the Eighth Amendment by placing inmates 23 infected with COVID-19 in Plaintiff’s building. ECF No. 98 at 3. The Court granted 24 summary judgment on July 24, 2023, finding that Plaintiff failed to show that 25 Defendant’s decisions caused Plaintiff to contract COVID-19,

, and holding that 26 Defendant was not deliberately indifferent because by designating quarantine cells in the 27 mental health building, he was reasonably attempting to limit the spread of COVID-19, 28

. 1 On August 2, 2023, Defendant submitted a Bill of Costs requesting $1,728.20 in 2 costs for transcripts of depositions of Plaintiff: $565 for a certificate of non-appearance 3 for a deposition at which plaintiff did not appear and $1,163.20 for a completed 4 deposition. ECF No. 100 at 1; ECF 100-3 at 2; ECF No. 100-4 at 2. Plaintiff did not file 5 a response, but filed the instant motion to reconsider, which contests the Bill of Costs, on 6 August 16, 2023. ECF No. 102. Following a hearing, on August 23, 2023 the Clerk of 7 Court taxed costs against Plaintiff for the full $1,728.20. ECF No. 104. Plaintiff moved 8 for the appointment of counsel on August 31, 2023. Defendant filed a response in 9 opposition to the motion for reconsideration, in which he argued against retaxing costs, 10 on September 5, 2023. ECF No. 106. Plaintiff replied on October 18, 2023. ECF No. 11 109. The Court accepts the Plaintiff’s reply even though it was not timely filed because 12 Plaintiff states that he placed the reply in his unit’s mailbox before the deadline, on 13 October 6, 2023. ECF No. 108 at 16. 14 Motion for Reconsideration 15 Plaintiff contends that the Court’s summary judgment order is incorrect and argues 16 that he should be permitted to reopen discovery and amend his complaint under the 17 Americans with Disabilities Act (“ADA”). ECF No. 102 at 1-3 (“I am now enforcing my 18 rights under the American [D]isability Act”); ECF No. 109 at 1 (“discovery should be 19 reopened”). Plaintiff captions his motion as under Federal Rule of Civil Procedure 20 (“Rule”) 59. ECF No. 102 at 1. Liberally construing Plaintiff’s motion due to his pro se 21 status, see Erickson v. Pardus,

(2007), the Court will review his motion 22 for reconsideration under Rule 59(e) and Rule 60(b). See United States v. Martin, 226

, 1048 & n.8 (9th Cir. 2000) (holding that a district court may reconsider a 24 “final, appealable order[]” under Rule 59(e) or Rule 60(b)). 25 “A motion for reconsideration under Rule 59(e) should not be granted[] absent 26 highly unusual circumstances[.]” McDowell v. Calderon,

(9th Cir. 27 1999) (en banc) (per curiam) (internal quotation marks and citation omitted). Relief is 28 appropriate only when “(1) the district court is presented with newly discovered 1 evidence, (2) the district court committed clear error or made an initial decision that was 2 manifestly unjust, or (3) there is an intervening change in controlling law.” Ybarra v. 3 McDaniel,

(9th Cir. 2011). Clear error means that “the reviewing 4 court on the entire record is left with the definite and firm conviction that a mistake has 5 been committed.” Smith v. Clark Cnty. Sch. Dist.,

(9th Cir. 2013) 6 (citation omitted). Granting a motion to reconsider is an “extraordinary remedy, to be 7 used sparingly in the interests of finality and conservation of judicial resources.” Kona 8 Enters., Inc. v. Est. of Bishop,

, 890 (9th Cir. 2000) (citation omitted). It is 9 not a mechanism for raising arguments or presenting evidence for the first time that could 10 have previously been raised. Id. A district court has “considerable discretion” in 11 reviewing a Rule 59(e) motion. Turner v. Burlington N. Santa Fe R.R. Co.,

(9th Cir. 2003). 13 Similarly, Rule 60(b) permits the Court to relieve a party from a final judgment if 14 they show (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) 15 fraud by an opposing party; (4) a void judgment; (5) a satisfied or discharged judgment; 16 or (6) “extraordinary circumstances which would justify relief.” Sch. Dist. No. 1J, 17 Multnomah Cnty. v. ACandS, Inc.,

, 1263 (9th Cir. 1993); Fed. R. Civ. P. 18 60(b). The standard for “extraordinary circumstances” under “Rule 60(b)(6) is high, and 19 such relief should be granted sparingly to avoid manifest injustice.” Riley v. Filson, 933

(9th Cir. 2019) (internal quotation marks and citations omitted). “Rule 21 60(b) cannot be used as a vehicle to bring new claims.” Jones v. Ryan,

, 836 22 (9th Cir. 2013). 23 Plaintiff characterizes the Court’s dismissal of his claims as erroneous, ECF No. 24 102 at 1, and refers to three errors in the Court’s summary judgment order. First, he 25 suggests that the Court misunderstood “his wording.” ECF No. 102 at 1. However, the 26 page of the Court’s summary judgment order that Plaintiff cites discusses Defendant’s 27 arguments and concessions, not Plaintiff’s.

at 1 (citing ECF No. 98 at 11). Second, 28 Plaintiff contends that Defendant’s motion for summary judgment incorrectly stated that 1 Plaintiff refused an offer to be moved to another building and requests that discovery be 2 reopened so that he can prove it. ECF No. 109 at 1-2. But the Court did not mention, let 3 alone rely on, this allegation in its summary judgment order, so the Court cannot have 4 erred on this basis. ECF No. 98 (absence). Third, Plaintiff argues that the Court has 5 “changed it’s [sic] narrative on the facts” because it found that he pled sufficient facts to 6 partially overcome the motion to dismiss and then dismissed his case at summary 7 judgment. See ECF No. 109 at 2. But these holdings are consistent because, as described 8 in the relevant orders, the legal standards for a motion to dismiss and for a motion for 9 summary judgment are different. On a motion to dismiss the Court must assume the truth 10 of the factual allegations in the complaint and determine whether Plaintiff’s claim is 11 plausible, ECF No. 39 at 4, while on a motion for summary judgment, the Court must 12 assess whether the plaintiff has made a sufficient showing of the elements of their case 13 such that a rational trier of fact could find for them. ECF No. 98 at 8. The Court’s orders 14 denying the motion to dismiss and granting summary judgment are therefore consistent. 15 Plaintiff does not point to any other errors in the summary judgment order and the Court 16 does not perceive any. 17 Plaintiff also suggests that the Defendant committed some form of fraud by filing 18 for summary judgment because he “circumvented” the Court’s scheduling order directing 19 the parties to a Mandatory Settlement Conference. ECF No. 109 at 1, 3; see also ECF 20 No. 82 (setting Mandatory Settlement Conference). But filing a motion for summary 21 judgment before a mandatory settlement conference is not fraud; it is standard procedure. 22 And a grant of summary judgment and dismissal of the case moots the need for a 23 mandatory settlement conference. Additionally, the order was not manifestly unjust: 24 Defendant was not deliberately indifferent by designating quarantine cells in Plaintiff’s 25 building because he was reasonably attempting to limit the spread of COVID-19 in the 26 prison. See ECF No. 98 at 14-16. And finally, there is no newly discovered evidence or 27 intervening case law. ECF No. 102 (absence). In short, this is not the rare case where an 28 1 “extraordinary” remedy is warranted. Kona Enters., 229 F.3d at 890; Sch. Dist. No. 1J, 2 Multnomah Cnty., 5 F.3d at 1263. 3 The thrust of Plaintiff’s argument is that he should have been, or should now be, 4 allowed to raise a claim under the ADA. ECF No. 102 at 1-3. But Plaintiff may not use 5 a motion for reconsideration to raise an argument or claim that he could have reasonably 6 raised earlier, see Berman v. Freedom Fin. Network, LLC,

(9th Cir. 7 2022), and he could have raised the ADA claim earlier. Indeed, Plaintiff initially 8 requested leave to amend his complaint to assert an ADA claim. ECF No. 66 at 1. 9 However, upon the government’s opposition to the motion to amend, ECF No. 69, 10 Plaintiff moved to withdraw his request to amend―explaining that he was not attempting 11 to add new claims or defendants, ECF No. 70―and the Court granted it, ECF No. 71. In 12 his motion and reply, Plaintiff states that he “[felt] compelled to with[draw]” and 13 withdrew the motion “in good faith” because the government opposed and that he is now 14 “enforcing his rights under the American [D]isability Act.” ECF No. 109 at 2; ECF No. 15 102 at 2. Nonetheless, Plaintiff may not raise a new cause of action or otherwise amend 16 his complaint at this stage absent new evidence or law. See Berman,

. 17 To the extent Plaintiff challenges the Court’s decision to grant Plaintiff’s motion to 18 withdraw his motion to amend the complaint, ECF No. 71, the motion is untimely. Local 19 Rule 7.1(i)(2) requires applications for reconsideration to be filed within 28 days of the 20 order being challenged.1 The Court granted Plaintiff’s motion to withdraw his motion to 21 amend on November 28, 2022, ECF No. 71, almost ten months before Plaintiff filed the 22 23 1 Contrary to Defendant’s assertion, the order granting Plaintiff’s motion to withdraw his 24 motion to amend the complaint is not reviewable under Rule 60(b), or Rule 59(e) for that 25 matter, because it is not a final, appealable order. See Martin, 226 F.3d at 1048 n.8; ECF 106 at 4. But, “[a]s long as a district court has jurisdiction over the case, then it possesses 26 the inherent procedural power to reconsider, rescind, or modify an interlocutory order for 27 cause[.]” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper,

(9th Cir. 2001) (quoting Melancon v. Texaco, Inc.,

(5th Cir. 1981) 28 1 instant motion on August 16, 2023, ECF No. 102. But even if the motion were timely, 2 the order was not erroneous or unjust. See Smith,

. It simply granted 3 Plaintiff’s own request to withdraw his motion to amend his complaint because he did not 4 wish to raise any new claims. ECF No. 71 at 2. 5 Plaintiff’s reply also seems to take issue with the Court’s grant of judicial notice of 6 Case No. 21-cv-00055 in its order denying in part Defendants’ motion to dismiss. ECF 7 No. 109 at 2. To the extent his reply is a request for reconsideration, it is untimely under 8 Local Rule 7.1(i)(2) because the order Plaintiff references was filed on March 9, 2022, 9 ECF No. 109 at 2 (citing ECF No. 39), almost a year and half before Plaintiff filed his 10 reply on October 18, 2023. 11 Finally, Plaintiff requests that the Court make Defendant settle. ECF No. 109 at 12 13. But though the Court can order parties to a settlement conference, United States v. 13 U.S. Dist. Ct. for N. Mariana Islands,

(9th Cir. 2012), it does not 14 have the power to force a party to settle, Rogers v. Giurbino, No. 11-cv-560,

3878163, at *3 (S.D. Cal. July 18, 2016). 16 Accordingly, the Court DENIES Plaintiff’s motion for reconsideration. 17 Motion to Retax Costs 18 The Court construes Plaintiff’s argument that he should not be liable to pay the 19 $1,728.20 Bill of Costs as a motion to retax costs.2 ECF No. 102 at 4; see also ECF No. 20 106 at 5-6 (Opposition responding to Plaintiff’s argument as a motion to retax costs); see 21 Erickson,

(holding that pro se filings should be liberally construed). 22 23

24 25 2 That the Plaintiff filed the instant motion before the Clerk of Court taxed costs does not affect the Court’s decision to construe this argument as motion to retax costs. ECF No. 26 102 (instant motion); ECF No. 104 (costs taxed); cf. Draper v. Rosario,

, 27 1086 (9th Cir. 2016) (holding that a notice of appeal of the final judgment filed prior to the award of costs incorporated the appeal of a denial of a motion to retax costs because 28 1 Rule 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order 2 provides otherwise, costs―other than attorney’s fees―should be allowed to the 3 prevailing party.” This rule “creates a presumption in favor of awarding costs to a 4 prevailing party, but vests in the district court discretion to refuse to award costs.” Ass’n 5 of Mexican-American Educ. v. State of Cal.,

, 591 (9th Cir. 2000) (en banc). 6 To deny costs to the prevailing party, the district court must specify its reasoning. Id. 7 This is “in essence, a requirement that the court explain why a case is not ‘ordinary’ and 8 why, in the circumstances, it would be inappropriate or inequitable to award costs.” Id. at 9 593. The Ninth Circuit has explained that some “[a]ppropriate reasons for denying costs 10 include: (1) the substantial public importance of the case, (2) the closeness and difficulty 11 of the issues in the case, (3) the chilling effect on future similar actions, (4) the plaintiff's 12 limited financial resources, and (5) the economic disparity between the parties.” Escriba 13 v. Foster Poultry Farms, Inc.,

(9th Cir. 2014). All of these 14 circumstances need not be present for a district court to refuse to award costs. Draper v. 15 Rosario,

(9th Cir. 2016). Still, indigency alone, including 16 proceeding IFP, does not “exempt a prisoner from paying costs.”

17 Plaintiff argues only that he is not obligated to pay costs because he did not enter 18 into a contract to do so. ECF No. 102 at 4. But costs to the prevailing party in litigation 19 are authorized by the Federal Rules. Fed. R. Civ. P. 54(d). Defendant argues that costs 20 should not be retaxed because although Plaintiff has limited resources, he paid the filing 21 fee, the case was not close or difficult, and the amount of costs, $1,728.20, is too 22 moderate to have a chilling effect on future prisoner civil rights litigation. ECF No. 106 23 at 6. The Court disagrees. 24 As Defendant acknowledges, Plaintiff is incarcerated and has essentially no 25 resources.

In his own words, he also has “severe mental illness.” ECF No. 66 at 1. 26 27 28 1 At the time he filed the complaint and requested to proceed IFP in January 2021, 2 Plaintiff had no checking account and no form of income other than a COVID-19 3 stimulus check. ECF No. 2 at 2; see Draper,

(considering the plaintiff’s 4 lack of income and restitution debt at the time he filed his complaint in reviewing the 5 district court’s grant of costs). Plaintiff reported that he was awarded $5,400 in a 6 settlement in another case but owes restitution and court fees exceeding that amount. 7 ECF No. 2 at 2-3. Plaintiff has no income or assets from which to pay these costs, even 8 assuming he is permitted to pay only a portion of what he owes. See

1915(f)(2)(B), (b)(1) (holding that prisoners can pay 20% of monthly deposits into their 10 account or 20% of their average monthly balance). And the Ninth Circuit has held that 11 “[c]osts are properly denied when a plaintiff would be rendered indigent should []he be 12 forced to pay the amount assessed.” Escriba, 743 F.3d at 1248; see also Meeks v. 13 Parsons, No. 1:03-cv-6700,

, at *1 (E.D. Cal. July 21, 2010) (denying 14 costs primarily because of the plaintiff’s indigency); Reed v. Moore, No. 2:05-cv-00060, 15

, at *2 (E.D. Cal. Feb. 18, 2011) (same). 16 The Court agrees with Defendant that the case was not especially close or difficult, 17 but nor was it frivolous. Plaintiff had a legitimate, though losing, complaint about 18 Defendant’s COVID-19 policies, a complaint allegedly made by a number of inmates, 19 ECF No. 1 at 3. Prison policies regarding highly communicable diseases are of 20 substantial public importance, and over $1,700, while small in relation to of what 21 litigation costs can be, is an extraordinary sum for most inmates and enough to chill 22 future civil rights litigation. As the Ninth Circuit explained in the context of prisoner 23

24 25 3 Although Stanley v. Univ. of S. California,

(9th Cir. 1999) observed that the losing party’s resources should be assessed at the time costs were taxed, 26 in Draper,

, the Ninth Circuit considered an incarcerated plaintiff’s 27 resources at the time he filed his complaint. Here, there is no indication that Plaintiff’s resources have changed between when he filed his complaint and when costs were taxed 28 1 complaints about excessive force, “[m]any would-be litigants in Eighth Amendment .. . 2 ||cases ... have virtually no resources. Even those with meritorious cases may choose not 3 risk an unsuccessful lawsuit that could add to the fees and costs associated with 4 ||conviction and imprisonment.” /d. at 1086, 1088 (holding that the district court’s award 5 $3,018 in costs was an abuse of discretion). 6 Accordingly, the Court GRANTS the motion to retax costs and denies the award of 7 costs to Defendant. 8 Conclusion 9 The Court DENIES Plaintiff's motion for reconsideration of summary judgment 10 GRANTS the motion to retax costs, denying costs to Defendant. Because the Court 11 denied the motion for reconsideration of summary judgment, the Court DENIES the 12 ||motion for the appointment of counsel as moot. 13 IT IS SO ORDERED 14 || Dated: October 24, 2023 <=

16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

11