1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JULIA TERYAEVA-REED, Case No. 24-cv-03910-JSW

8 Plaintiff,

ORDER DENYING MOTION FOR

9 v. RECONSIDERATION

10 COLETTE S. PETERS, et al., Re: Dkt. No. 12 Defendants. 11

12 Plaintiff, a federal prisoner in Miami, Florida proceeding pro se, filed this civil rights case 13 against officials of the Federal Bureau of Prisons (“BOP”). The complaint was dismissed for 14 failure to state a claim upon which relief may be granted. Plaintiff has filed a motion for 15 reconsideration. 16 Where, as here, the Court's ruling has resulted in a final judgment or order (e.g., after 17 dismissal or summary judgment motion), a motion for reconsideration may be based either on 18 Rule 59(e) (motion to alter or amend judgment) or Rule 60(b) (motion for relief from judgment) of 19 the Federal Rules of Civil Procedure. See Am. Ironworks & Erectors v. N. Am. Constr. Corp., 248 20 F.3d 892, 898-99 (9th Cir. 2001). Rule 59(e) is used for a substantive change of mind by the court 21 while Rule 60(a) should be used when the court has made an error in execution that requires the 22 judgment to be corrected to implement the intended purpose. Tattersalls, Ltd., v. DeHaven, 745 23 F.3d 1294, 1299 (9th Cir. 2014). 24 The Court construes Plaintiff’s motion as a motion under Rule 59(e) because Plaintiff 25 appears to argue the Court should change its mind in dismissing the case and/or grant leave to 26 amend. Cf. id. Furthermore, the denial of a motion for reconsideration under Rule 59(e) is 27 construed as a denial of relief under Rule 60(b), McDowell v. Calderon, 197 F.3d 1253, 1255 n.3 1 not warranted under Rule 59(e). 2 A motion for reconsideration under Rule 59(e) “should not be granted, absent highly 3 unusual circumstances, unless the district court is presented with newly discovered evidence, 4 committed clear error, or if there is an intervening change in the law.” Id. at 1255. A district court 5 does not commit clear error warranting reconsideration when the question before it is a debatable 6 one. Id. 7 Plaintiff cites no new evidence or intervening change in the law. Nor has she shown clear 8 error. She argues her claims may proceed under Bivens v. Six Unknown Federal Narcotics Agents, 9 403 U.S. 388, 392-97 (1971), because of there is “statutory authority” for the claims, namely “a 10 court order” from a recent class action brought by then-inmates of the Federal Correctional 11 Institute in Dublin, California (“FCI Dublin”). A court order is not a statute, and Plaintiff’s 12 arguments that Defendants have violated a court order in the class action must be made in that 13 case (through class counsel if necessary), not in a new case.1 14 Plaintiff also argues she was subject to sexual discrimination at FCI Miami (the prison to 15 which she was transferred and where she is currently housed), in violation of her rights to due 16 process and equal protection, insofar as male inmates enjoy better conditions than female inmates. 17 It was not clear to the Court in its initial review of the complaint that Plaintiff was bringing claim 18 for gender discrimination at FCI Miami. In any event, the proper venue for her to bring claims 19 arising from the conditions of her confinement at FCI Miami is the Southern District of Florida, 20 see 28 U.S.C. § 89(c), not this district, because that is where the events giving rise to the claims 21 took place and the responsible officials are located. Accordingly, the dismissal order is 22 AMENDED IN PART to indicate the claims of sexual discrimination at FCI Miami are dismissed 23 without prejudice to bringing such claims in the United States District Court for the Southern 24 District of Florida. 25 Plaintiff also argues her retaliation claim is cognizable because she is a member of the 26 class in the class action against BOP officials arising from the conditions of confinement at FCI 27 1 Dublin. While prison officials may not retaliate against Plaintiff for exercising her First 2 || Amendment right to access the courts, the Court is aware of no authority that simply being a class 3 member of an ongoing class action, as opposed to filing or litigating a case, is protected by the 4 || First Amendment. But even if assuming it is, Plaintiff alleged no facts that, if true, plausibly 5 indicate Defendants closed FCI Dublin and transferred her to another prison because she 6 || participated in the lawsuit and that doing so did not reasonably advance the legitimate correctional 7 || goal of redressing the unconstitutional conditions at the prison, conditions of which the class 8 members, including Plaintiff, complained. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 9 Cir. 2005) (elements of First Amendment retaliation claim include the adverse action was caused 10 || by the protected conduct and that the action did not “reasonably advance a legitimate correctional 11 goal.”). Consequently, Plaintiff has not shown the Court committed plain error warranting 12 || reconsideration in concluding the complaint, when liberally construed, did not state a cognizable 13 retaliation claim or that such a claim could be cured by amendment. 14 Accordingly, Plaintiff's motion for reconsideration is DENIED IN PART and GRANTED 3 15 IN PART insofar as her claims of sexual discrimination at FCI Dublin are dismissed without 16 || prejudice as described above.

IT IS SO ORDERED.

|| Datea: August 14, 2024

C / f te 20 FFREN S. wre 21 (United Stateyistrict Judge 22 □

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