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Gray v. Diaz

United States District Court, Ninth Circuit

January 10, 2014



EDWARD J. LODGE, District Judge.

Plaintiff, a transgender prisoner in the custody of the Idaho Department of Correction ("IDOC"), is proceeding pro se and in forma pauperis in this civil rights action. Pending before the court is Defendant's Motion for Summary Judgment (Dkt. 23). Also pending are (1) Plaintiff's Motion for Reconsideration (Dkt. 20) of the Court's Order dated May 28, 2013 ("May 28 Order"); (2) Defendant's Motion to Stay Discovery (Dkt. 22); (3) Plaintiff's Motion to Strike (Dkt. 35); and (4) Plaintiff's Motion for Appointment of Counsel (Dkt. 42).

Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record without oral argument. D. Idaho L. R. 7.1. For the reasons that follow, the Court concludes that there is no genuine dispute as to any material fact and that Defendant is entitled to judgment as a matter of law.


1. Motion For Reconsideration

In its May 28 Order, the Court reviewed Plaintiff's Amended Complaint pursuant to 28 U.S.C. ยงยง 1915 and 1915A and allowed Plaintiff to proceed only on her retaliation claim that Defendant stole or destroyed some of Plaintiff's legal documents in retaliation for Plaintiff's exercise of her constitutional rights. All other claims were dismissed. (May 28 Order, Dkt. 16, at 9.) Plaintiff moves for reconsideration of that Order.

A court has the "inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (internal quotation marks and emphasis omitted). However, it "should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.'" Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n. 8 (1983)).

The Court does not find sufficient cause to reconsider its May 28 Order. Plaintiff's Motion is little more than a disagreement with the Court's legal analysis-a matter for appeal, not reconsideration. Plaintiff has not shown that the Court's May 28 Order was clearly erroneous or that it will work a manifest injustice. Thus, the Motion for Reconsideration will be denied.

2. Motion to Strike

Plaintiff moves to strike Defendant's affidavit, submitted in support of the Motion for Summary Judgment, on the grounds that the affidavit "is not based on personal knowledge[] and offers statements that are conclusory." (Dkt. 35 at 1.) The Court disagrees. In his affidavit, Defendant sets forth his duties as a property officer, the IDOC's policies on inmate property searches, and the circumstances surrounding the events giving rise to Plaintiff's claim. Therefore, the Court will deny the Motion to Strike.

The Court will also deny the Motion to Strike on the alternative basis that Plaintiff maliciously filed the Motion in bad faith and in an attempt to harass Defendant. Plaintiff states that Defendant "is a Hispanic, possibly of dubious immigration status." (Dkt. 35-1 at 2.) Plaintiff has plainly violated Local Civil Rule 83.8, which provides:

All pretrial and trial proceedings in the United States District and Bankruptcy Courts for the District of Idaho, must be free from prejudice and bias towards another on the basis of gender, race, ethnicity, disability, age or sexual orientation. Fair and equal treatment must be accorded all courtroom participants, whether judges, attorneys, witnesses, litigants, jurors, or court personnel. The duty to be respectful of others includes the responsibility to avoid comment or behavior that can reasonably be interpreted as manifesting prejudice or bias toward another.

Plaintiff's failure to abide by the Court's civility standards is alone sufficient to justify the denial of the Motion to Strike. Although Plaintiff is a frequent litigator in this Court and is likely aware of those standards, the Court declines at this time to impose sanctions on Plaintiff. However, Plaintiff should be aware that failure to follow the rules or orders of the Court is grounds for dismissal. See Fed.R.Civ.P. 41(b). Plaintiff should carefully consider the statements she makes in future filings to ensure that she does not again commit such offensive violations of Court rules.

3. Motion for Appointment of Counsel

Plaintiff also moves for appointment of counsel. The Court will deny this Motion in the exercise of discretion. In civil cases, counsel should be appointed only in "exceptional circumstances." Id. To determine whether exceptional circumstances exist, a court must evaluate two factors: (1) the likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate her claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and both must be evaluated together. Id.

The Court finds no extraordinary circumstances that would require the appointment of counsel. Plaintiff has demonstrated the ability to submit legible and well-written documents to the Court, and the issues are not complex in this matter. Further, the Court concludes that Plaintiff will not succeed on the ...

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