Thomas v. Garcia et al
Filing
149
ORDER Denying the Request for Reconsideration and Granting 148 Plaintiff's Renewed Motion for the Court to Request Assistance in Plaintiff's Effort to Correspond With Potential Trial Witnesses, signed by Magistrate Judge Jennifer L. Thurston on 3/21/13. (Gonzalez, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
JEAN-PIERRE K. THOMAS,
12
Plaintiff,
13
14
v.
M.P. GARCIA, et. al,
15
Defendants.
16
17
18
19
20
21
22
23
24
25
26
27
)
)
)
)
)
)
)
)
)
)
Case No.: 1:08-cv-00689 - JLT
ORDER DENYING THE REQUEST FOR
RECONSIDERATION AND GRANTING
PLAINTIFF’S RENEWED MOTION FOR THE
COURT TO REQUEST ASSISTANCE IN
PLAINTIFF’S EFFORT TO CORRESPOND WITH
POTENTIAL TRIAL WITNESSES
(Doc. 148).
Plaintiff Jean-Pierre K. Thomas (“Plaintiff”) is a prisoner proceeding pro se and in forma
pauperis in an action pursuant to 42 U.S.C. § 1983. On March 14, 2013, Plaintiff filed his Renewed
Motion for Correspondence Approval with Potential Witnesses for Trial. (Doc. 148). For the reasons
stated below, the Court DENIES the request for reconsideration but will request the CDCR permit
Plaintiff to have this correspondence subject to whatever rules are necessary to ensure the security of
the prison facilities.
I.
BACKGROUND.
On January 18, 2013, the Court denied Plaintiff’s initial request that the Court grant him
permission to correspond with inmates Michael Key, Frank Ward, Lovoyne Macon, Damion Moore
and Dewayne Thedford. (Doc. 143 at 2). In regard to Frank Ward, the Court noted that the CDCR
Inmate Locator found no person under that name or number provided and therefore the motion was
28
1
1
denied. Id. The Court found that Plaintiff had previously corresponded with Michael Key and the
2
Motion was denied as moot as to Michael Key. Id. at 4.
On February 8, 2013, Plaintiff sought reconsideration of the order. (Doc. 145). The Court
3
4
declined to reconsider his prior request to correspond with inmates. (Doc. 146). The Court determined
5
that Plaintiff failed to demonstrate how inmates Damon Moore, Lovoyne Macon and Dewayne
6
Thedford related to this case and reiterated the Court lacked the authority to order the correspondence
7
he requested. (Doc. 145 at 3).
8
In his present Motion, Plaintiff indicates that he renewed his request to obtain permission to
9
correspond with witnesses by seeking permission from his current correctional counselor, Mr.
10
Dominguez. (Doc. 148 at 2). Plaintiff does not indicate which potential witnesses he sought to contact
11
with Mr. Dominguez’s permission. See generally, (Doc. 148). However, Plaintiff indicates that
12
Damon Moore, Lovoyne Macon, and Dewayne Thedford were witnesses to the incident in which
13
Plaintiff alleges Defendants Garcia and Bonella forced Plaintiff to the ground on October 5, 2006.
14
(Doc. 148 at 2).
15
correspondence with these potential witnesses. Id.
16
II.
Plaintiff moves the Court to “request” – not order – the CDCR to facilitate
DISCUSSION
17
Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality
18
and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A
19
reconsideration motion “should not be granted absent highly unusual circumstances.” McDowell v.
20
Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999), cert. denied, 490 U.S. 1059 (1989). A reconsideration
21
motion “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a
22
rehearing on the merits, or otherwise taking a ‘second bite at the apple.’” See Sequa Corp. v. GBJ
23
Corp., 156 F.3d 136, 144 (2d Cir. 1998). “To succeed, a party must set forth facts or law of a strongly
24
convincing nature to induce the court to reverse its prior decision.” Id. Reconsideration is appropriate
25
if the court: (1) is presented with newly discovered evidence; (2) has committed clear error or the
26
initial decision was manifestly unjust; or (3) is presented with an intervening change in controlling
27
law. School District 1J, Multnomah County v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert.
28
denied, 512 U.S. 1236 (1994). In addition, there may be other highly unusual circumstances
2
1
warranting reconsideration. Id. Under this Court’s Local Rule 230(j), a party seeking reconsideration
2
must demonstrate “what new or different facts or circumstances are claimed to exist which did not
3
exist or were not shown upon such prior motion, or what other grounds exist for the motion” and “why
4
the facts or circumstances were not shown at the time of the prior motion.”
5
Here, Plaintiff explains that Damon Moore, Lovoyne Macon, and Dewayne Thedford were
6
actual eyewitnesses to an alleged altercation between Plaintiff and Defendants Garcia and Bonilla on
7
October 5, 2006, which is the subject of this litigation. The Court finds that Damon Moore, Lovoyne
8
Macon, and Dewayne Thedford’s potential testimony is substantially related to the present case.
9
However - as the Court previously held in its Orders dated January 18, 2013, and February 14,
10
2013 – the Court does not have jurisdiction over anyone other than Plaintiff and the Defendants. E.g.,
11
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United
12
for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). The Court cannot order the CDCR
13
to permit Plaintiff to be allowed to correspond with his witnesses. Id. Plaintiff is again reminded that
14
– at most – the Court can only request the CDCR to permit correspondence. Se e.g., McElroy v. Cox,
15
Case No. 1:08–cv–01221–LJO–GSA–PC, 2012 WL 1299618 * 1-2 (E.D. Cal. 2012). Therefore, the
16
Court DENIES Plaintiff’s Motion for Request for Reconsideration, but REQUESTS that the CDCR
17
facilitate correspondence between Plaintiff and inmates Damon Moore, Lovoyne Macon and Dewayne
18
Thedford.
In regard to Michael Key and Frank Ward, the Court DENIES Plaintiff’s Motion to
19
20
Reconsider, because no new grounds for reconsideration are presented before the Court.
21
III.
CONCLUSION
22
Based upon the foregoing, the Court orders as follows:
23
1. The Court DENIES Plaintiff’s Motion for Reconsideration as to Michael Key as MOOT;
24
2. The Court DENIES Plaintiff’s Motion for Reconsideration;
25
3. The Court REQUESTS the CDCR permit Plaintiff to correspond with Damon Moore,
26
Lovoyne Macon, and Dewayne Thedford as potential witnesses in this matter, subject to
27
whatever rules are necessary to ensure the security of the prison facilities;
28
3
1
4. Counsel for Defendants SHALL provide a copy of this order to the appropriate CDCR
2
officials and, within 30 days of the date of this order SHALL file a report detailing
3
CDCR’s response.
4
5
6
IT IS SO ORDERED.
7
8
9
Dated:
March 21, 2013
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
9j7khijed
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?