Carter v. Dawson et al

Filing 195

ORDER DENYING 188 Motion for Reconsideration signed by District Judge Anthony W. Ishii on 3/3/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LON CARTER,

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Plaintiff

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CASE NO. 1:07-CV-1325 AWI BAM

v.

ORDER ON DENYING MOTION

WARDEN NICK DAWSON, et al.,
(Doc. No. 188)

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Defendants

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On March 6, 2015, the Court adopted a Findings and Recommendation that inter alia

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recommending granting Defendants’ motion for summary judgment and closing the case. See

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Doc. No. 182. The same day, judgment was entered and the case was closed. See Doc. No. 183.

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On March 16, 2015, Plaintiff filed a notice of appeal. See Doc. No. 184. The appeal was

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processed to the Ninth Circuit on March 25, 2015. See Doc. No. 185. The Case Number in the

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Ninth Circuit for Plaintiff’s appeal is 15-15575. See Doc. No. 186.
On April 6, 2015, Plaintiff filed a document entitled “Motion for new trial, rehearing, and

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reconsideration.” Doc. No. 188. This motion addresses the Court’s order adopting the Findings

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and Recommendation, as well as the analysis within the Findings and Recommendation that was

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adopted. See id. However, the motion also states that Plaintiff “now appeals,” and “Pursuant to

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[Plaintiff’s] issues contained in his notice of appeal, Plaintiff raises the following issue . . . .” Id.

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at p.2.

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It is not clear what Plaintiff’s motion is. The language regarding “appeal,” combined with
the fact that a notice of appeal was filed prior to the filing of this motion, indicate that Plaintiff

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may have mistakenly filed what he intended to be an appellate brief in this Court. Accepting the

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“motion” as a misfiled appellate brief, the motion is of no effect as this Court is not the appellate

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court. Moreover, a review of the Ninth Circuit docket shows that Plaintiff has submitted his

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opening brief. See Ninth Circuit Docket Doc. No. 14 in Case No. 15-15575.

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Alternatively, if Plaintiff intends his motion to be a Rule 59(e) motion, his not entitled to

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relief.1 Relief under Rule 59(e) is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law.” Dixon v. Wallowa County, 336 F.3d 1013,

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1022 (9th Cir. 2003). This standard is a “high hurdle.” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th

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Cir. 2001). Plaintiff has not shown a change in controlling law, submitted newly discovered

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evidence, or shown that the Court committed clear error or that its decision was manifestly unjust.

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See Dixon, 336 F.3d at 1022. Instead, Plaintiff reiterates previously rejected arguments and

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expresses his disagreement with the Court’s decisions, which is insufficient. See City of Fresno v.

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United States, 709 F.Supp.2d 888, 916 (E.D. Cal. 2010). Thus, Plaintiff has not met his “high

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hurdle.” Weeks, 246 F.3d at 1236.

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ORDER
Accordingly, pursuant to the above analysis, Plaintiff’s motion entitled “Motion for new

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trial, rehearing, and reconsideration” (Doc. No. 188) is DENIED.

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IT IS SO ORDERED.
Dated: March 3, 2016
SENIOR DISTRICT JUDGE

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Assuming that Plaintiff intended to file a Rule 59 motion, his motion is timely, see Fed. R. Civ. P. 59(e), and the fact
that Plaintiff first filed a notice of appeal does not prevent this Court from ruling on the motion. See Warren v.
American Bankers Ins., 507 F.3d 1239, 1244-45 (10th Cir. 2007); In re Rains, 428 F.3d 893, 904 n.9 (9th Cir. 2005);
Ross v. Marshall, 426 F.3d 745, 752 n.13 (5th Cir. 2005).

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