Dancy v. Scribner, et al

Filing 58

ORDER DENYING 56 Plaintiff's Motion for Reconsideration signed by Judge Oliver W. Wanger on 12/3/2009. (Jessen, A)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Samuel Dancy, Jr., a state prisoner proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's amended complaint, filed December 3, 2007, against Defendants Thompson, Smith, Posner, Reynolds, Gage, and Hasadsri for acting with deliberate indifference to Plaintiff's medical needs, in violation of the Eighth Amendment. On November 30, 2009, Plaintiff filed what he described as a motion to have the District Judge vacate the order in which the Magistrate Judge erred in finding that Plaintiff failed to mail discovery responses. The motion is accompanied by a proof of service stating that medical records and interrogatories were served by mail on September 2, 2009. The filing is in response to the Court's order, filed October 27, 2009, in which the Court granted Defendants' motions to compel, and ordered Plaintiff to serve further responses to Posner interrogatory 2, and Reynolds, Hasadsri, Posner, and Smith interrogatories 3, 4, 7, and 8; and a response to Reynolds, Hasadsri, Posner, Smith document production requests 1 and 2 within forty-five days. /// 1 v. (Doc. 56) A. K. SCRIBNER, et al., Defendants. / SAMUEL DANCY, JR., Plaintiff, CASE NO. 1:07-cv-00716-OWW-SMS PC ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

UNITED STATES DISTRICT COURT

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local Rule 78-230(k) requires Plaintiff to show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original). Plaintiff failed to file any response at all to Defendants' motions to compel, and in seeking reconsideration, Plaintiff fails to offer any explanation for that omission. Plaintiff has therefore waived any argument that he timely responded to the discovery requests. The Court did not err in granting the motions to compel given the record before it, and Plaintiff's attempt to have the Court set aside the order based merely on his untimely submission of a proof of service is without merit. Plaintiff is not entitled to reconsideration of the order, and the order stands. The motion for reconsideration is HEREBY DENIED.

IT IS SO ORDERED. Dated: December 3, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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