Carpenter v. Sullivan, et al.

Filing 164

ORDER denying 120 Motion for Reconsideration signed by Magistrate Judge Gerald B. Cohn on 11/4/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIE LEE CARPENTER,
CASE NO.: 1:07-cv-00114-AWI-GBC (PC)

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Plaintiff,

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W. J. SULLIVAN, et al.,

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.

(Doc. 120)

Defendants.
______________________________________/

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I.

Procedural History

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Plaintiff Willie Lee Carpenter, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on January 22, 2007. This action is proceeding on

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Plaintiff's first amended complaint (Doc. 17), filed on September 17, 2008, against Defendants A. Pfeil,

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J. Gonzalez, J. Barajas, Ortiz, A. Salazar, J. Martinez, Litton. (Docs. 59, 65, 66).1

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II.

Standard Governing Motions for Reconsideration

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district

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court. The Rule permits a district court to relieve a party from a final order or judgment on grounds of:

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“(1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud . . . of an adverse party, . . . or (6)

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any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). The

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Defendants Sullivan, Evans and Carrasco were dismissed March 28, 2011. (Doc. 110).

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motion for reconsideration must be made within a reasonable time, in any event “not more than one year

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after the judgment, order, or proceeding was entered or taken.” Id.

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Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin

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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en

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banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. See e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656,

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665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert.

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denied, 486 U.S. 1015 (1988). The Ninth Circuit has stated that “[c]lause 60(b)(6) is residual and ‘must

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be read as being exclusive of the preceding clauses.’” Corex Corp. v. United States, 638 F.2d 119 (9th

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Cir. 1981); accord LaFarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir.

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1986). Accordingly, “the clause is reserved for ‘extraordinary circumstances.’” Id. When filing a

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motion for reconsideration, Local Rule 230(j)(3) & (4) requires a party to show the “new or different

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facts or circumstances are claimed to exist which did not exist for the motion; and . . . why the facts or

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circumstances were not shown at the time of the prior motion.”

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A.

Reconsideration of Order Adopting Findings and Recommendations to Dismiss
Defendants Sullivan, Evans and Carrasco

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On July 16, 2010, Defendants motioned to dismiss Defendants Sullivan, Evans and Carrasco on

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the grounds that Plaintiff failed to state a supervisory liability claim against these particular defendants.

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(Doc. 74). On January 3, 2011, the Magistrate Judge filed findings and recommendations in which

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recommended granting Defendants’ motion to dismiss Defendants Sullivan, Evans and Carrasco from

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the action. (Doc. 95). Plaintiff was given thirty days to file an objection to the Findings and

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Recommendations and he did not file any objections. (Docs. 95, 110). On March 18, 2011, Plaintiff

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filed a request for extension of time, which appears to be requesting an extension of time to conduct

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discovery. (Doc. 107). On April 26, 2011, Plaintiff filed a motion of reconsideration of the Court’s

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order adopting the findings and recommendations to dismiss Defendants Sullivan, Evans and Carrasco.

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(Doc. 120). In Plaintiff’s motion for reconsideration, Plaintiff states that his request for extension of

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time, filed on March 18, 2011, was in fact requesting an extension to respond to the motion to dismiss

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filed on July 16, 2010. Plaintiff further asserts that on April 10, 2011, Plaintiff filed objections to the
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findings and recommendations. (Doc. 120).

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However, Plaintiff’s motion for extension of time was asking for an extension of the discovery

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deadlines. (Doc. 107). Even if it were requesting an extension of time to file an objection to the

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findings and recommendations filed on January 3, 2011, the request for extension of time was after the

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thirty day period to file an objection had expired and Plaintiff’s request for extension of time would have

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been untimely. (Docs. 95, 107). Moreover, even if Plaintiff filed objections on April 10, 2011, as

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Plaintiff asserts in his motion for reconsideration, those objections would have been untimely.

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As Plaintiff failed to timely file objections or timely file an extension of time to file objections,

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Plaintiff has failed to demonstrate why the Court should reconsider its order adopting filed on March

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28, 2011. (Doc. 110). As Plaintiff has not presented arguments other than the abovementioned

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arguments regarding the untimely extension of time and submission of an untimely objection, Plaintiff

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has failed to meet his burden to prevail in this Rule 60(b) motion.

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III.

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Conclusion and Order
Based on the foregoing, Plaintiff’s motion for reconsideration filed on April 26, 2011, is

HEREBY DENIED. (Doc. 120).

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IT IS SO ORDERED.

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Dated:
0jh02o

November 4, 2011
UNITED STATES MAGISTRATE JUDGE

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