Trevino v. Gomez, et al

Filing 61

ORDER DENYING 60 Motion to Reconsider Order Denying Motion to Amend or Reopen Complaint signed by District Judge Lawrence J. O'Neill on 12/2/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT TREVINO,

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Plaintiff,

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v.
JAMES GOMEZ, et al.,

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Defendants.

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Case No.: 1:99-cv-06016-LJO-BAM (PC)
ORDER DENYING MOTION TO RECONSIDER
ORDER DENYING MOTION TO AMEND OR
REOPEN COMPLAINT
(ECF No. 60)

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I.

Introduction
Plaintiff Robert Trevino (“Plaintiff”) is a state prisoner proceeding pro se and in forma

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Previously in this case, the Court adopted findings and recommendations to grant the

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Defendants’ motion for summary judgment for failure to exhaust administrative remedies, and the

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Clerk of Court entered judgment and closed the case. Over thirteen years later, Plaintiff filed a motion

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to amend or reopen the complaint, alleging acts of retaliation on various dates following the events

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underlying his original complaint. (ECF No. 57.) On October 26, 2015, the Court denied Plaintiff’s

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motion to amend or reopen the closed action as untimely, and because it concerned new claims that

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needed to be brought in a new suit. (ECF No. 59.)

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Currently before the Court is another motion by Plaintiff filed November 30, 2015, in which he

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presents additional arguments in support of amending or reopening his complaint. (ECF No. 60.) The

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Court construes Plaintiff’s motion as a Federal Rule of Civil Procedure 60(b)(6) request for

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reconsideration of the Court’s October 26, 2015 order denying the same relief.

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II.

Discussion

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A.

Standard

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if there

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is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH

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& Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted).

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Additionally, pursuant to this Court’s Local Rules, when filing a motion for reconsideration, a party

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must show what “new or different facts or circumstances claimed to exist which did not exist or were

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not shown upon such prior motion, or what other grounds exist for the motion.” Local Rule 230(j).

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B.

Analysis

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In his motion, Plaintiff notes that his case was dismissed many years ago for failure to exhaust

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his administrative remedies, without prejudice. (ECF No. 60, p. 2.) He argues that he did not bring a

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motion for relief from that judgment at an earlier time because he “did not find out until last year [that]

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he could have re-opened his case after exhausting per Fed. R. Civ. Procedure Rule 60(b).” (Id.) To the

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extent that Plaintiff is arguing that he has now exhausted any of his previously unexhausted claims, his

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remedy is not to reopen this action. Instead, if he has now exhausted a previously unexhausted claim,

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“[t]he petitioner then would be able to file a new federal petition in a new action under a new docket

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number to present the exhausted claims.” Brooks v. Williams, No. 2:10-CV-00045-GMN, 2013 WL

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835973, at *2 (D. Nev. Mar. 6, 2013). Furthermore, “the dismissal of the prior unexhausted petition

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by a final judgment would remain final, as to that closed old action under the old docket number.” Id.

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Thus, Plaintiff has presented no grounds to reopen this action under any provisions of Federal Rule of

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Civil Procedure 60(b).

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Plaintiff also argues that the judgment dismissing his case should be set aside under Rule

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60(d), because of fraud. (ECF No. 60, pp. 2-3.) He alleges that certain documents relevant to the
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incidents underlying his dismissed action were “fraudulent and perjured reports.” (Id. at p. 3.) These

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documents are not relevant to the finding that Plaintiff did not exhaust his administrative remedies

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prior to filing this action. Thus, Plaintiff’s argument does not undermine this Court’s order or

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judgment dismissing this action based on that finding. Plaintiff raises no grounds for relief under Rule

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60(d).

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III.

Conclusion and Order

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Accordingly, IT IS HEREBY ORDERED as follows:

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Plaintiff's motion for reconsideration of the previous order denying his request to

amend or reopen this case (ECF No. 60) is DENIED.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

December 2, 2015

UNITED STATES DISTRICT JUDGE

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