# McCloud v. Bird-Hunt > District Court, S.D. California · May 7, 2020 URL: https://www.frixlaw.com/law-library/cases/10081084 ## Case - **Court:** District Court, S.D. California - **Decided:** May 7, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10081084 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIE MCCLOUD, Case No.: 3:19-cv-00618-WQH-JLB Plaintiff, 12 ORDER v. 13 14 T. BIRD-HUNT, et al., Defendants. 15 16 HAYES, Judge: 17 The matter before the Court is Plaintiff’s Objection to the Report and 18 Recommendation. (ECF No. 24). 19 I. PROCEDURAL BACKGROUND 20 On April 2, 2019, Plaintiff Willie McCloud, a state prisoner proceeding pro se, filed 21 a civil rights action pursuant to 42 U.S.C. § 1983. (ECF. No. 1). On the same day, Plaintiff 22 filed a Motion for Leave to Proceed in Forma Pauperis. (ECF. No. 2). On April 8, 2019, 23 this Court issued an Order granting Plaintiff Motion to Proceed in Forma Pauperis. (ECF 24 No. 4). On June 27, 2019, Defendants filed a Motion to Dismiss. (ECF No. 10). On 25 August 5, 2019, Plaintiff filed a Response in opposition. (ECF No. 14). On September 10, 26 2019, Defendants filed a Response in support. (ECF No. 15). On January 6, 2020, the 27 Magistrate Judge issued a Report and Recommendation with Objections due by January 28 1 27, 2020 and Replies due by February 3, 2020. (ECF No. 17). No Objections were filed 2 by either party. On February 12, 2020, the Court issued an Amended Order adopting the 3 Report and Recommendation in its entirety; granting Defendants’ Motion to Dismiss; and 4 dismissing the Complaint without prejudice. (ECF No. 20). 5 On February 20, 2020, Plaintiff filed a Motion Requesting for Extension of Time to 6 File Objections. (ECF No. 22). On February 21, 2020, the Court issued a minute entry 7 ordering any Objections to the Report and Recommendation due by April 3, 2020 and any 8 Reply to the Objections due by April 17, 2020. (ECF No. 23). On March 2, 2020, Plaintiff 9 filed an Objection. (ECF No. 24). On April 17, 2020, Defendants filed a Reply. (ECF 10 No. 25). 11 II. STANDARD OF REVIEW 12 Generally, reconsideration of a prior order is “appropriate if the district court (1) is 13 presented with newly discovered evidence, (2) committed clear error or the initial decision 14 was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. 15 Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations 16 omitted). Reconsideration is an “extraordinary remedy, to be used sparingly in the interests 17 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 18 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). Ultimately, whether to grant or deny 19 a motion for reconsideration is in the “sound discretion” of the district court. Navajo 20 Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 21 883). A motion for reconsideration “may not be used to raise arguments or present 22 evidence for the first time when they could reasonably have been raised earlier in the 23 litigation.” Kona Enters., 229 F.3d at 890 (emphasis in original) (citation omitted). 24 III. DISCUSSION 25 a. Plaintiff’s Objections 26 Plaintiff contends that Defendant’s Motion to Dismiss for failure to state a claim 27 should be denied because Plaintiff’s Complaint adequately states a cause of action. 28 Plaintiff asserts that he intended to bring a claim pursuant to the Fourteenth Amendment, 1 not a Fifth Amendment claim as plead in the Compliant. Plaintiff contends that he has a 2 protected liberty interest in the prison grievance procedure. Plaintiff asserts that he is not 3 alleging a deprivation of any specific grievance procedure. Rather, Plaintiff contends that 4 Defendant Lewis deprived Plaintiff of his ability to raise claims in a civil rights case by 5 violating state regulations, federal law pursuant to the Prison Litigation Reform Act, and 6 executive law. Plaintiff asserts that he is seeking injunctive relief and not monetary 7 damages against Defendants in their official capacity. 8 b. Due Process Under the Fourteenth Amendment 9 The Fourteenth Amendment prohibits any state from depriving a person of life, 10 liberty, or property without due process of law. See U.S. Const. amend. XIV, § 1. The 11 guarantee of procedural due process under the Fourteenth Amendment applies only when 12 a constitutionally protected liberty or property interest is at stake. See Bd. of Regents of 13 State Colls. v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due 14 process apply only to the deprivation of interests encompassed by the Fourteenth 15 Amendment’s protection of liberty and property.”). Interests protected by the Due Process 16 Clause may arise from two sources: the clause itself and the laws of the states. See 17 Meachum v. Fano, 427 U.S. 215, 223-27 (1976). To state a procedural due process claim, 18 a plaintiff must allege: “(1) a liberty or property interest protected by the Constitution; (2) 19 a deprivation of the interest by the government; [and] (3) lack of process.” Wright v. 20 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (alteration in original). 21 The Court previously found that “Defendant Lewis’s denial of Plaintiff’s request to 22 amend was part of the processing of Plaintiff’s inmate grievance ….” (ECF No. 17 at 11). 23 The Court concluded that Plaintiff failed to state a claim pursuant to the Fourteenth 24 Amendment “[b]ecause Plaintiff does not have an entitlement to any specific grievance 25 procedure ….” Id. The Court further concluded that “granting Plaintiff leave to amend his 26 due process claim against Defendant Lewis would be futile” because “Plaintiff cannot as a 27 matter of law assert a Fourteenth Amendment due process claim against Defendant Lewis 28 in connection with his inmate grievance because ‘prisoners have no standalone due process 1 rights related to the administrative grievance process.’” Id. at 14 (citation omitted). 2 Plaintiff fails to present new evidence in his Objection. Plaintiff fails to assert there was 3 an intervening change in the law. Plaintiff implicitly contends that the Court committed 4 “clear error”. Sch. Dist. No. 1J, 5 F.3d at 1263. The Court finds no clear error in its 5 conclusions that Plaintiff failed to state a claim pursuant to the Fourteenth Amendment and 6 that granting Plaintiff leave to amend his due process claim against Defendant Lewis would 7 be futile. 8 c. Eleventh Amendment Immunity 9 The Eleventh Amendment precludes federal jurisdiction over a suit against a state 10 or state agency unless the state or agency consents to the suit. See Seminole Tribe of Fla. 11 v. Florida, 517 U.S. 44, 53-54 (1996). The Court of Appeals has determined that “the 12 California Department of Corrections … [is] entitled to Eleventh Amendment immunity 13 … [as an] agenc[y] of the state ….” Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th 14 Cir. 2009) (citation omitted). State officials acting in their official capacities receive the 15 same immunity as the government agency that employs them because “an official-capacity 16 suit against a state officer is not a suit against the official but rather is a suit against the 17 official’s office” and “[a]s such it is no different from a suit against the State itself”. Hafer 18 v. Melo, 502 U.S. 21, 26 (1991) (internal quotation marks and citation omitted). Thus, a 19 state official sued for damages in his or her official capacity is entitled to Eleventh 20 Amendment immunity. See Kentucky v. Graham, 473 U.S. 159, 167 (1985) (“The only 21 immunities that can be claimed in an official-capacity action are forms of sovereign 22 immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.”). A 23 state official is not immune, however, when sued in an “official capacity” for “prospective 24 injunctive relief ….” Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (citation 25 omitted). In addition, “the Eleventh Amendment does not erect a barrier against suits to 26 impose ‘individual and personal liability’ on state officials under § 1983.” Hafer, 502 U.S. 27 at 30-31 (citation omitted). 28 The Court previously found that 1 Here, Defendants are state correctional officers.... Therefore, Plaintiff may 7 not seek monetary damages from Defendants in their official capacities. Plaintiff asserts in his opposition that he is not seeking “monetary gain” from 3 Defendants in their official capacities.... However, the Complaint includes A causes of action against all Defendants in their individual and official capacities and is silent as to any division of remedies.... 5 6 (ECF No. 17 at 13). The Court dismissed Plaintiff's claims for damages against all 4 Defendants in their official capacities. Id. The Court concluded that “[g]ranting Plaintiff g leave to amend his claims for damages against Defendants in their official capacities would 9 likewise be futile, for these claims also fail as a matter of law.” Id. at 14 (citation omitted). 10 However, the Court ruling “[did] not impact Plaintiff's prospective injunctive relief claims ll against Defendants Bird-Hunt and Ruelas or his claims for damages against Defendants 12 Bird-Hunt and Ruelas in their individual capacities.” Jd. at 13. To the extent Plaintiff 13 asserts that he is seeking prospective injunctive relief against Defendants in their official 14 capacity, the Court has previously stated that Plaintiff's prospective injunctive relief claims 15 against Defendants Bird-Hunt and Ruelas have not been dismissed. 16 CONCLUSION 7 IT IS HEREBY ORDERED that Plaintiff's Objection to the Report and 18 Recommendation (ECF No. 24) is OVERRULED. The Court declines to reconsider its 19 February 12, 2020 Amended Order adopting the Report and Recommendation in its 0 entirety. 71 Dated: May 7, 2020 BE: ie 2. Ma 99 Hon, William Q. Hayes United States District Court 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081084. Public record. Not legal advice.