(PC) Johnson v. Dovey et al

Filing 145

ORDER Denying Plaintiff's Motion For Reconsideration (Doc. 138 ), signed by District Judge Lawrence J. O'Neill on 11/1/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,

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CASE NO. 1:08-CV-00640-LJO-DLB PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.
(DOCS. 138)

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JOHN DOVEY, et al.,

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Defendants.

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/

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Plaintiff Garrison S. Johnson (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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against Defendants Dunnahoe, V. Ybarra, Cunningham, Medrano, Holguin, Valasquez, G.

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Ybarra, Curliss, J. Gonzales, and K. Powell on claims of excessive force, inhumane conditions of

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confinement, retaliation, and state law claims. On August 4, 2011, the Magistrate Judge assigned

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to this action denied Plaintiff’s motions for appointment of an expert witness. Pending before

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the Court is Plaintiff’s motion for reconsideration of the Magistrate Judge’s order, filed August

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16, 2011. Doc. 138.

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Pursuant to Federal Rule of Civil Procedure 72(a), when reviewing a magistrate judge’s

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order, “[t]he district judge in the case must consider timely objections and modify or set aside

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any part of the order that is clearly erroneous or is contrary to law.” See also 28 U.S.C. §

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636(b)(1)(A); L. R. 303. The assigned district judge may also reconsider any matter sua sponte.

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L.R. 303(g).
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Under the clearly erroneous standard of review, a district court may overturn a magistrate

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judge’s ruling “‘only if the district court is left with the definite and firm conviction that a

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mistake has been made.’” Computer Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d

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980, 983 (S.D. Cal. 1999) (quoting Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943

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(7th Cir. 1997)). Under the contrary to law standard, a district court may conduct independent

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review of purely legal determinations by a magistrate judge. Id.

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Plaintiff contends only that if he proceeds to trial without expert witnesses he will be

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subject to an unfair trial proceeding. Plaintiff contends that CDCR Defendants’ testimony will

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be treated as expert testimony and the trier of fact will believe Defendants rather than Plaintiff.

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Plaintiff’s argument is speculative at best. First, it is not clear whether Defendants intend on

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calling expert witnesses, or acting as experts on their own behalf. Second, Plaintiff present no

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new facts or circumstances that merit reconsideration. The magistrate judge’s order was not

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clearly erroneous or contrary to law.

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion for

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reconsideration, filed August 16, 2011, is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

November 1, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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