Wright v. Clark et al

Filing 86

ORDER signed by Chief Judge Anthony W. Ishii on 5/12/2011 denying 82 Motion for Reconsideration and directing clerk to send a copy of the complaint to plaintiff. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RAYMOND WRIGHT,

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Plaintiff,

CASE NO. 1:07-cv-00462-AWI-SMS PC
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION

v.
(ECF No. 82, 84)

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SCOTT KEBNAN, et al.,
Defendants.

ORDER DIRECTING CLERKS OFFICE TO
SEND A COPY OF THE COMPLAINT TO
PLAINTIFF

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/ (ECF No. 23.)
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Plaintiff Raymond Wright (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On November 22, 2010, Plaintiff

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filed a motion to compel Defendants to provide him with a copy of the complaint and all exhibits

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attached to the complaint or referred to by the complaint. (ECF No. 76.) Defendants filed an

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opposition on December 13, 2010. (ECF No. 77.) An order denying Plaintiff’s motion to compel

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was issued on March 17, 2011. (ECF No. 80.) Plaintiff filed a motion for reconsideration on March

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31, 2011, and Defendants filed an opposition on April 21, 2011. (ECF Nos. 82, 84.)

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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms,

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the court may relieve a party . . .from a final judgment, order, or proceeding for the following

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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence .

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. . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;

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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where none of these

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factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th
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Cir. 1991).

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order

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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation

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omitted). The moving party “must demonstrate both injury and circumstances beyond his control

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. . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed to exist

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

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motion,” and “why the facts or circumstances were not shown at the time of the prior 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,” and it “may not be used to raise arguments or

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present evidence for the first time when they could reasonably have been raised earlier in the

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litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009) (internal quotations marks and citations omitted) (emphasis in original).

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Plaintiff argues that the motion to compel should be granted because he did not receive a

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copy of Defendants’ opposition to his motion to compel and as a result he was unable to file a reply

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to Defendants’ opposition. Plaintiff alleges that since he notified the Court of his change of address

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he should have received the opposition unless Defendants’ neglected to mail it to him. Defendants’

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filed their opposition on December 13, 2010, and Plaintiff was rearrested and placed back in jail on

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January 5, 2011. Plaintiff’s motion for reconsideration alleges that Defendants are improperly

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withholding their opposition.

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Even if Plaintiff failed to receive Defendant’s opposition to the motion it would not change

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the facts upon which this motion is based. Plaintiff had not propounded any discovery and therefore,

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Plaintiff’s motion to compel was denied. Plaintiff’s motion is devoid of any ground entitling

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Plaintiff to reconsideration of the Court’s order and is denied.

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However, it appears that the issue here is partially that Plaintiff does not have access to the
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amended complaint that was filed as he was recently placed back in custody. The Court will order

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the Clerks Office to send Plaintiff a copy of the first amended complaint filed on March 28, 2008.1

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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed March 31, 2011, is DENIED; and

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2.

The Clerk’s Office shall mail a copy of the first amended complaint, filed March

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28,2008, to Plaintiff.
IT IS SO ORDERED.

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Dated:
0m8i78

May 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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The Court notes that the exhibits submitted with Plaintiff’s first amended complaint were returned to him
on March 31, 2008.

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