Moten v. Adams et al

Filing 94

FINDINGS and RECOMMENDATIONS Denying Plaintiff's 88 MOTION for RECONSIDERATION, referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 5/29/2013. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE MOTEN,

CASE NO. 1:07-cv-0924-AWI-MJS PC

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Plaintiff,
FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION

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v.
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DARREL ADAMS, et al.,

(ECF No. 88)

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Defendants.
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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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/
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Plaintiff Jesse Moten (“Plaintiff”), a state prisoner formerly proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 27,

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2007. On review and for good cause, the Court revoked Plaintiff’s in forma pauperis status

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and, when Plaintiff failed to pay the requisite filing fee, dismissed this action. (ECF Nos.

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84, 86.) This case was closed on August 13, 2012. (ECF No. 87.)

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On December 20, 2012, Plaintiff filed a motion for reconsideration. (ECF No. 88.)

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Plaintiff’s motion is difficult to understand, but appears to seeks reconsideration of the

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dismissal due to Plaintiff’s failure to pay the filing fee. (ECF No. 84.) It also seeks

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reconsideration of the Court’s recommendation for the dismissal of certain claims and

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defendants. (ECF No. 56.) Defendant Gonzales has filed an opposition. (ECF No. 89.)

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Plaintiff has failed to file a reply in a timely manner. Pursuant to Local Rule 230(l),

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Plaintiff’s motion is now ready for ruling.
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I.

LEGAL STANDARD

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Fed. R. Civ. P. 60(b)(6) allows the Court to relieve a party from an order for any

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

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

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

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

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control. Id. (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

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to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the

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time of the prior motion.”

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“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,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

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(internal quotations marks and citations omitted), and “[a] party seeking reconsideration

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must show more than a disagreement with the Court’s decision, and recapitulation . . . ” of

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that which was already considered by the Court in rendering its decision,” United States

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

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II.

DISCUSSION

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Plaintiff disagrees with several of the Court’s decisions. He primarily disagrees with

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the Court’s decision to dismiss certain claims and defendants. (ECF Nos. 56, 59.) The

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Court screened Plaintiff’s Second Amended Complaint, determined that Plaintiff had only

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stated a claim against Defendant Gonzalez, and dismissed Plaintiff’s other claims and

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Defendants. (Id.)

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Plaintiff also disagrees with the Court’s decision to revoke Plaintiff’s in forma

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pauperis status and dismiss his Second Amended Complaint due to his failure to pay the

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filing fee. (ECF Nos. 84, 86.)
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Defendant Gonzales had filed a motion to review Plaintiff’s in forma pauperis status

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because Plaintiff was subject to the “three strikes” provision under 28 U.S.C. § 1915(g).

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(ECF No. 77.) The Court reviewed Plaintiff’s litigation history and concluded that Plaintiff

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had accrued three strikes, i.e., he had two prior cases dismissed for failure to state a claim

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and one prior case dismissed as frivolous. (ECF No. 84.) The Court gave Plaintiff fourteen

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days to pay the full filing fee. When Plaintiff failed to do so, the Court dismissed his action

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for failure to obey a court order. (ECF Nos. 84, 86.)

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Reconsideration is not a vehicle by which to obtain a second bite at the apple; it is

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reserved for extraordinary circumstances. Westlands Water Dist., 134 F.Supp.2d at 1131;

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see also In re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989) (Fed. R. Civ.

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P. 60(b)(6) may provide relief where parties were confronted with extraordinary

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circumstances but it does not provide a second chance for parties who made deliberate

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choices).

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Plaintiff’s disagreement with the Court’s decisions is not grounds for reconsideration.

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Plaintiff alleges the Court “injudiciously” dismissed certain claims and defendants and

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failed to address all the claims raised in his Second Amended Complaint. (ECF No. 88.)

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The Court’s second screening order (ECF No. 56 at 4) advised Plaintiff that the Court’s

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original screening order had contained a thorough analysis of the identical claims and an

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explanation for their rejection. Plaintiff was referred to the initial screening order for

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instruction as to what would be necessary to state cognizable claims.

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Regardless, the Court dismissed Plaintiff’s action because Plaintiff failed to pay the

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filing fee. Plaintiff does not dispute the validity of the Court’s decision to revoke Plaintiff’s

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in forma pauperis status and require him to pay the filing fee.

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Plaintiff has failed to provide the Court with any newly discovered evidence, point

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to any clear error, or suggest there was an intervening change in the controlling law that

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would require the Court to grant his motion for reconsideration.

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III.

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CONCLUSION AND RECOMMENDATION
Accordingly, it is hereby RECOMMENDED that Plaintiff’s motion for reconsideration
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(ECF No. 88) be DENIED.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

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Recommendations, the parties may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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The parties are advised that failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

Within fourteen (14) days after being served with these Findings and

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IT IS SO ORDERED.

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Dated:
il0i0d

May 29, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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