Barry Lamon v. Tilton, et al

Filing 146

ORDER Denying Motion For Reconsideration (Doc. 143 ), signed by Chief Judge Anthony W. Ishii on 4/25/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BARRY LOUIS LAMON,

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CASE NO. 1:07-cv-00493-AWI-DLB PC

Plaintiff,

ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(DOC. 143)

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JOHN TILTON, et al.,
Defendants.
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Plaintiff Barry Louis Lamon (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation, proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. On March 23, 2011, the Court granted

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Defendant Wilber’s motion to dismiss and dismissed this action without prejudice. Judgment

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was entered. Pending before the Court is Plaintiff’s motion pursuant to Rule 60(b) of the Federal

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Rules of Civil Procedure, filed September 19, 2011. Doc. 143.

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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court.

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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 . . . by an opposing party,

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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for

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reconsideration must be made within a reasonable time. Id.

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

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation marks and citation omitted). The

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moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id.

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(internal quotation marks and citation omitted). Local Rule 230(j) requires Plaintiff to show

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“what new or different facts or circumstances are claimed to exist which did not exist or were not
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shown upon such prior motion, or what other grounds exist for the motion.”
“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotation marks and citation omitted) (emphasis in

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original).

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Plaintiff contends that the Court erred in dismissing some of Plaintiff’s claims as fanciful

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and frivolous, and dismissing other claims for failure to exhaust administrative remedies.

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Plaintiff moves for the Court to vacate its previous orders dismissing claims, and for leave to file

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a fourth amended complaint.

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Plaintiff presents no new arguments that merit reconsideration. As to Plaintiff’s

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contention that his claims for food-tainting should not have been dismissed, Plaintiff submits

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exhibits concerning psychological experiments. Pl.’s Mot. 9-13 and Exs. 6, 7. The experiments

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cited do not persuade this Court that Plaintiff’s allegations were not frivolous.

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As to Plaintiff’s contention that he exhausted administrative remedies, Plaintiff submits

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an inmate grievance filed on December 13, 2006. Pl.’s Mot., Ex. 5. This grievance was screened

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out several times by appeals coordinators for Plaintiff not complying with the grievance

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requirements. Plaintiff provides no explanation as to why he did not present this grievance when

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Defendants moved to dismiss for Plaintiff’s failure to exhaust administrative remedies. To the

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extent Plaintiff claims to have evidence that Defendants interfered with filing administrative

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grievances, Plaintiff provides no reason why this evidence was not presented earlier. The court

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properly disregards evidence that is introduced for the first time in a motion for reconsideration

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but was available earlier. Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

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The court finds Plaintiff has presented no cause for the Court to reconsider its previous orders.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for reconsideration, filed

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September 19, 2011, is denied.

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IT IS SO ORDERED.

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Dated:
0m8i78

April 25, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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