K'napp v. Adams et al

Filing 84

ORDER Granting Motion for Reconsideration 83 ; ORDER Granting Final Extension of Time to File Supplemental Objections, signed by District Judge Lawrence J. O'Neill on 8/2/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC C. R. K’NAPP,

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Plaintiff,

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1:06-cv-01701-LJO-GSA-PC
ORDER GRANTING MOTION
FOR RECONSIDERATION
(Doc. 83.)

vs.
D. G. ADAMS, et al.,

ORDER GRANTING FINAL EXTENSION
OF TIME TO FILE SUPPLEMENTAL
OBJECTIONS

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Defendants.
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THIRTY DAY DEADLINE
/

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I.

BACKGROUND

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Plaintiff is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff filed this action on November 22, 2006. (Doc. 1.) This action now proceeds on the Second

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Amended Complaint filed on November 13, 2008, on Plaintiff's claims for retaliation and

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interference with his right to send mail, in violation of the First Amendment. (Doc. 16.)

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On July 25, 2011, the Magistrate Judge denied Plaintiff’s motion for extension of time to file

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supplemental objections, with prejudice. (Doc. 82.) On July 29, 2011, Plaintiff filed a motion for

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reconsideration by the District Judge. (Doc. 83.)

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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.” “A party

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seeking reconsideration must show more than a disagreement with the Court’s decision, and

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

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

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Plaintiff requests reconsideration of the Magistrate Judge’s order denying Plaintiff’s motion

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for extension of time, on the ground that the order incorrectly asserted that “Plaintiff waited more

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than thirty days after the supplemental objections were due to request an extension of time, and he

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has not shown excusable neglect for the delay.” (Order, Document 82 at 3:16-17.) Plaintiff

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maintains that his motion for extension of time was not filed untimely, because the supplemental

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objections were due on July 19, 2011, and the motion was filed on July 20, 2011. Plaintiff’s

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argument has merit. The Court’s order of June 16, 2011, established a thirty day deadline for

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Plaintiff to file supplemental objections. (Doc. 77.) Thus, the supplemental objections were due on

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or before July 19, 2011.1 Although Plaintiff’s motion for extension of time was filed one day after

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the July 19, 2011 deadline, the Court deems the motion to be timely under the mailbox rule. Douglas

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v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).

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Under Rule 60(b), the court may relieve a party from an order for mistake. Fed. R. Civ. P.

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60(b). Plaintiff has shown clear error and has therefore met his burden as the party moving for

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reconsideration. Therefore, Plaintiff’s motion for reconsideration shall be granted, and Plaintiff shall

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be granted an extension of time to file supplemental objections. However, in light of the fact that

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the Magistrate Judge’s Findings and Recommendations have been pending for nearly one year, and

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Plaintiff has had ample opportunity to file objections and supplemental objections, Plaintiff shall not

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Under Rule 6(d), three days are added after the period would otherwise expire under Rule 6(a). Fed. R.
Civ. P. 6(d).

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be granted further extensions of time to file objections. Therefore, Plaintiff shall be granted one,

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final extension of time in which to file supplemental objections to the Magistrate Judge’s Findings

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and Recommendations of August 23, 2010.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for reconsideration, filed on July 29, 2011, is GRANTED; and

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2.

Plaintiff is GRANTED one, final extension of time until thirty days from the date of

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service of this order, in which to file supplemental objections to the Magistrate

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Judge’s Findings and Recommendations of August 23, 2010.

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IT IS SO ORDERED.

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Dated:
b9ed48

August 2, 2011

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

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