Lee v. Alamedia, et al

Filing 136

ORDER signed by District Judge Lawrence J. O'Neill on 4/5/2012 denying 133 Motion for Reconsideration with prejudice. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORRIS LEE,

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Plaintiff,

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1:02-cv-05037-LJO-GSA-PC
ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION, WITH
PREJUDICE
(Doc. 133.)

vs.
C/O HOUGH, et al.,

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Defendants.
/

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I.

BACKGROUND

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Norris Lee (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. On February 15, 2012, this action was dismissed based on Plaintiff’s

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failure to exhaust remedies before filing suit. (Doc. 131.) On March 19, 2012, Plaintiff filed a

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motion for relief from the judgment. (Doc. 133.) On March 22, 2012, Defendants filed an

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opposition to the motion. (Doc. 134.) On April 4, 2012, Plaintiff filed a reply to the opposition.

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(Doc. 135.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d

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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must
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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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

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were not shown upon such prior motion, or what other grounds exist for the motion.”

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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

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

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

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff argues that this case should be reopened because he attempted to file an

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administrative appeal on July 7, 2000, addressing the allegations in his complaint of the July 5, 2000

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assault against him, and prison officials refused to process the appeal. (Motion for Reconsideration,

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Doc. 133 at 2-4 and Exh. A.) Plaintiff submits copies of declarations of other inmates, which he

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previously filed in this action on August 3, 2011, in which the inmates declare that their

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administrative appeals were sometimes lost and not processed. (Id., Exh. B.)

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In opposition, Defendants argue that the Court fully dealt with Plaintiff’s assertion that prison

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officials refused to process his appeals, in the findings and recommendations entered on July 19,

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2011, which were adopted by the District Judge on August 24, 2011. (Docs. 90, 108.) Defendants

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also argue that there is no evidence that Plaintiff ever submitted the July 7, 2000 administrative

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appeal to prison officials and furthermore, the appeal does not address the July 10, 2000 assault

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which was at issue when the Court dismissed Plaintiff’s action on February 12, 2012.

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Discussion

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At the time Plaintiff’s case was dismissed, only one defendant remained in the case,

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defendant C/O Hough, on Plaintiff’s allegations that C/O Hough failed to protect him during an

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assault on July 10, 2000. In the order dismissing this action on February 12, 2012, the Court found

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that Plaintiff had not exhausted his remedies with respect to these allegations. Plaintiff fails to
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present any new evidence that the Court’s order was not properly decided. His argument that prison

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officials refused to process his administrative appeal is without merit, because the appeal is dated

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July 7, 2000, which is before the July 10, 2000 assault occurred. Plaintiff could not have written an

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appeal about an event that had not yet occurred. Plaintiff has not demonstrated that the Court

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committed clear error, or presented the Court with new information of a strongly convincing nature,

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to induce the Court to reverse its prior decision. Therefore, the motion for reconsideration shall be

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denied, with prejudice. The Court shall not consider further motions for reconsideration in this

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action.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for reconsideration, filed on March 19, 2012, is DENIED, with
prejudice; and

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2.

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No further motions for reconsideration, clarification, modification, or the like, shall
be considered in this action.

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IT IS SO ORDERED.

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Dated:
b9ed48

April 5, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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