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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DIANE DUNCAN,

NO. CIV. S-04-523 LKK/PAN

Plaintiff,

v. O R D E R

STATE OF CALIFORNIA, et al.,

Defendants.

 /

Pending on the court’s August 7, 2006 law and motion calendar

is defendants’ motion for reconsideration of the court’s June 12,

2006 order in the above-captioned case. Given the straightforward

nature of the disposition of the motion, the court resolves the

matter on the defendant’s moving papers.

I.

STANDARDS 

"Under the ‘law of the case' doctrine a court is generally

precluded from reconsidering an issue that has already been decided

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by the same court, or a higher court in the identical case."

United States v. Alexander, 106 F.3d 874, 876 (9th Cir.

1997)(citing Thomas v. Bible, 983 F.2d 153, 154 (9th Cir.), cert.

denied, 508 U.S. 951 (1993)). Although motions to reconsider are

directed to the sound discretion of the court, see Kern-Tulare

Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D.

Cal. 1986), aff'd in part and rev'd in part on other grounds, 824

F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988),

considerations of judicial economy weigh heavily in the process.

Thus, Local Rule 78-230(k) requires that a party seeking

reconsideration of a district court's order must brief the "new or

different facts or circumstances . . . which . . . were not shown

upon such prior motion, or what other grounds exist for the

motion." Generally speaking, before reconsideration may be granted

there must be a change in the controlling law or facts, the need

to correct a clear error, or the need to prevent manifest

injustice. See Alexander, 106 F.3d at 876. 

Motion to reconsider are not vehicles permitting the

unsuccessful party to "rehash" arguments previously presented. See

Costello v. United States Government, 765 F. Supp. 1003, 1009 (C.D.

Cal. 1991). Nor is a motion to reconsider justified on the basis

of new evidence available prior to the court's ruling. See Fay

Corp. v. BAT Holdings One, Inc., 651 F. Supp. 307, 309 (W.D. Wash.

1987), aff'd, 896 F.2d 1227 (9th Cir. 1990). Finally, "after

thoughts" or "shifting of ground" do not constitute an appropriate

basis for reconsideration. See id. These relatively restrictive

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standards "reflect[] district courts' concern for preserving

dwindling resources and promoting judicial efficiency." Costello,

765 F. Supp. at 1009.

II. 

ANALYSIS

Defendants maintain that the court erred in stating that there

was no evidence that plaintiff was engaged in criminal activity,

thereby permitting plaintiff to assert an “as applied” claim

against the defendants’ jail release provisions. See Defs.’ Mot.

to Recon. at 2:23-26. Defendants submit that there was ample

evidence of plaintiff’s criminal activity. Namely, that plaintiff

was arrested and that plaintiff did not dispute that there was

probable cause to arrest her. See id. at 3. This argument is

unavailing. Defendants cite to no authority to support their

position and, indeed, none exists. Accordingly, defendants fail

to demonstrate that there has been any change in the controlling

law or facts, or that there is a need to correct a clear error, or

prevent manifest injustice. 

As the court explained in its June 12 order, the mere fact

that plaintiff was arrested, without more, does not establish that

plaintiff was engaged in criminal activity. See June 12, 2006

Order at 14:21. It is undisputed that the arrest report was not

completed, and that plaintiff was never charged with any criminal

offense. The contention that an arrest, without more, constitutes

evidence of criminal activity is without merit. 

////

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The fact that plaintiff was arrested does not support the

inference that there was probable cause that plaintiff engaged in

criminal activity. Within the context of mass arrests, people are

often arrested without particularized probable cause, and thus

defendants’ obligation to demonstrate probable cause "cannot be

undercut or avoided by simply pointing to the fact that

coincidently there exists probable cause to search or seize

another." Ybarra v. Illinois, 444 U.S. 85, 91 (1979); see also

Maryland v. Pringle, 540 U.S. 366 (2003) (the belief of guilt in

a probable cause determination must be particularized with respect

to the person to be searched or seized). 

As the D.C. Circuit explained, "an officer cannot predicate

a search or seizure on an individual's 'mere propinquity to others

independently suspected of criminal activity.'" Barham v. Ramsey,

434 F.3d 565, 573 (D.C. Cir. 2006) (citing Ybarra, 444 U.S. at 91).

In Barham, the court concluded that a mass arrest violated

plaintiffs' Fourth Amendment rights by detaining them without

particularized probable cause. Id. It is also well-established

that the "existence of probable cause be decided by a neutral and

detached magistrate." Gerstein v. Pugh, 420 U.S. 103, 112 (1975).

This requirement arises from the fact that arrest does not, on its

own, support an inference that there was probable cause that

the arrestee engaged in criminal activity. Put somewhat

differently, even if an arrest was sufficient to infer probable

cause, which it is not, given that the issue arises in the context

of a motion for summary judgment, the court is obligated to draw

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all inferences in favor of the non-moving party. United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

For these reasons, defendants’ motion for reconsideration is

DENIED. The hearing currently set for August 7, 2006 is hereby

VACATED.

IT IS SO ORDERED. 

DATED: July 7, 2006.

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