Ellis v. Tilton et al

Filing 28

ORDER DENYING 25 Motion for Reconsideration, signed by District Judge Lawrence J. O'Neill on 4/22/2010. (Sondheim, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion for reconsideration of the October 29, 2009, order dismissing this action for failure to state a claim upon which relief could be granted. Plaintiff seeks reconsideration of the order adopting the findings and recommendations of the Magistrate Judge and dismissing this action. The recommendation of dismissal was based on Plaintiff's failure, in the March 13, 2009, first amended complaint, to allege facts sufficient to state a claim for relief. Plaintiff alleged that he was subjected to inadequate medical care, such that it constituted deliberate indifference to a serious medical need, in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. The Magistrate Judge found that the first amended complaint failed to state a claim for relief. Specifically, the Magistrate Judge JAMES E. TILTON, et al., Defendants. vs. LeGRANTE ELLIS, Plaintiff, 1: 07 CV 01351 LJO MJS (PC) ORDER RE MOTION (DOC 25) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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found that Plaintiff was previously informed of the deficiencies in his complaint, and the amended complaint failed to cure those deficiencies. The Magistrate Judge found that the deficiencies were not capable of being cured with further leave to amend. Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. The rule permits a district court to relieve a party from a final order or judgment on the grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud . . . of an adverse party, . . . or (6) any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b). The motion for reconsideration must be made within a reasonable time, in any event, "not more than one year after the judgment, order, or proceeding was entered or taken." Id. Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)(en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988). The Ninth Circuit has held that "[c]lause 60(b)(6) is residual and `must be read as being exclusive of the preceding clauses.'" LaFarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 1986), quoting Corex Corp. v. United States, 638 F.2d 119 (9th Cir. 1981). Accordingly, "the clause is reserved for `extraordinary circumstances.'" Id. In his motion, Plaintiff disagrees with the finding that the first amended complaint fails to state a claim for relief. The court notes that on October 23, 2009, Plaintiff filed objections to the findings and recommendations. The court considered the objections in the October 29, 2009, order adopting the findings and recommendations. In his motion for reconsideration, Plaintiff restates the arguments set forth in his objections to the findings and

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recommendations. In the present case, the court finds that the above standard has not been met. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration of the October 29, 2009, order adopting the findings and recommendations and dismissing this action is denied.

IT IS SO ORDERED. Dated: b9ed48 April 22, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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