Aurelio M. Sepulveda v. Woodford et al

Filing 80

ORDER GRANTING 78 Plaintiff's Motion for Reconsideration; ORDER VACATING 76 Order Adopting Findings and Recommendations and 77 Judgment; ORDER Directing Clerk to Re-Serve Plaintiff With a Copy of the May 16, 2012 Findings and Recommendations; and ORDER REOPENING CASE signed by Chief Judge Anthony W. Ishii on 9/7/2012. Within fourteen (14) days after being served with the Findings and Recommendations, the parties may file written objections with the Court. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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AURELIO MARTIN SEPULVEDA,

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CASE NO. 1:05-cv-01143-AWI-DLB PC

Plaintiff,

ORDER GRANTING PLAINTIFF’S MOTION
FOR RECONSIDERATION (ECF No. 78)

v.
ORDER VACATING ORDER ADOPTING
FINDINGS AND RECOMMENDATIONS
AND JUDGMENT (ECF Nos. 76, 77)

SHU-PIN WU, et al.,
Defendants.

ORDER REOPENING CASE
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Plaintiff Aurelio Martin Sepulveda (“Plaintiff”) is a prisoner in the custody of the

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California Department of Corrections and Rehabilitation, proceeding pro se in this civil action

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pursuant to 42 U.S.C. § 1983. This action proceeded against Defendant Shu-Pin Wu for

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retaliation in violation of the First Amendment and deliberate indifference to a serious medical

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need in violation of the Eighth Amendment. On September 22, 2011, Defendant filed his motion

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for summary judgment. On May 16, 2012, the Magistrate Judge assigned to this action issued

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Findings and Recommendations, recommending that Defendant’s motion for summary judgment

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be granted. On August 3, 2012, the undersigned adopted the Findings and Recommendations

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and directed the Clerk of the Court to enter judgment. Pending before the Court is Plaintiff’s

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motion for reconsideration, filed August 27, 2012. ECF No. 78. Because the motion was filed

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within twenty-eight days after the issuance of the judgment, the motion is properly construed as

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pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
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In general, there are four basic grounds upon which a Rule 59(e) motion may be
granted: (1) if such motion is necessary to correct manifest errors of law or fact
upon which the judgment rests; (2) if such motion is necessary to present newly
discovered or previously unavailable evidence; (3) if such motion is necessary to
prevent manifest injustice; or (4) if the amendment is justified by an intervening
change in controlling law.

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Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). “Since specific grounds for a

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motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion

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in granting or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.

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1999) (en banc) (per curiam) (internal quotation marks omitted). Amending a judgment after its

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entry remains “an extraordinary remedy which should be used sparingly.” Id. (internal quotation

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marks omitted). This Court's Local Rule 230(j) requires a party seeking reconsideration to

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

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

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and . . . why the facts or circumstances were not shown at the time of the prior motion.”

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Plaintiff contends that he would be greatly prejudice if Plaintiff is not permitted to file

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objections the Findings and Recommendations. Plaintiff declares that he was never served with

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the Findings and Recommendations, and thus had no opportunity to file objections.

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A review of the Court’s docket indicates that Plaintiff did not receive service by mail of

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the Findings and Recommendations. This appears to be clerical error. Accordingly, to prevent

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manifest injustice, the Court will grant Plaintiff’s motion for reconsideration and vacate the order

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adopting the Findings and Recommendations and the judgment.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for reconsideration, filed August 27, 2012, is granted;

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2.

The Order adopting the Findings and Recommendations, and the judgment,

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docketed on August 3, 2012, are vacated;
3.

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The Clerk of the Court is directed to re-open this action and to re-serve Plaintiff
with a copy of the May 16, 2012 Findings and Recommendations; and

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Within fourteen (14) days after being served with the Findings and
Recommendations, the parties may file written objections with the Court. The
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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” A party may respond to another party’s objections by filing a

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response within fourteen (14) days after being served with a copy of that party’s

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objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez

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v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
0m8i78

September 7, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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