Cohea v. Adams et al

Filing 91

ORDER Denying Plaintiff's 88 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 01/26/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DANNY JAMES COHEA,

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CASE NO. 1:08-cv-01186-LJO-BAM PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.
(ECF No. 88)

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D. ADAMS, et al.,

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Defendants.
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Plaintiff Danny James Cohea, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on August 13, 2008. On December 21, 2011,

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this action was dismissed for Plaintiff’s failure to prosecute and judgment was entered. (ECF Nos.

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86, 87.) Plaintiff filed a motion for reconsideration on January 4, 2012. (ECF No. 88.)

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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms,

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the court may relieve a party . . .from a final judgment, order, or proceeding for the following

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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence .

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. . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;

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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where none of these

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factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th

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Cir. 1991).

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order

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

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.
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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation

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

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. . . .” Id. (internal 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 to exist

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which did not exist or were not shown upon such prior motion, or what other grounds exist for the

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motion,” and “why the facts or circumstances were not shown at the time of the prior motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” and it “may not be used to raise arguments or

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present evidence for the first time when they could reasonably have been raised earlier in the

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

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2009) (internal quotations marks and citations omitted) (emphasis in original).

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Plaintiff was ordered to file an opposition or statement of non-opposition to Defendants’

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motion for summary judgment within thirty days on September 2, 2011. (ECF No. 76.) Plaintiff was

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granted an additional sixty days to file his opposition on October 4, 2011. (ECF No. 81.) Plaintiff

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filed a motion for clarification on November 21, 2011. (ECF No. 84). In the motion for

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clarification, Plaintiff did not move for an extension of time to conduct discovery prior to responding

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to the motion for summary judgment, but requested clarification because he argued that the order to

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respond superceded the discovery and scheduling order issued June 6, 2011. On November 28,

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2011, the Magistrate Judge issued an order addressing Plaintiff’s arguments and explaining that if

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Plaintiff believed that additional discovery was necessary prior to opposing the motion for summary

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judgment Plaintiff needed to file a motion prior to the date his response was due. (ECF No. 85.)

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Plaintiff failed to file a motion or objection. Plaintiff’s additional arguments have previously been

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considered and addressed in orders denying his prior motions for reconsideration. (ECF Nos. 78,

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83.)

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To the extent that Plaintiff’s motion for clarification could be construed as a motion brought

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under Fed. R. Civ. P. 56(d), if the party opposing the motion believes he can not oppose the motion

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for summary judgment on the merits without discovery, the burden is on him to review Defendants’
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motion, determine what discovery is necessary to oppose the motion, and make the requisite showing

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in a Rule 56(d) motion. Rule 56(d), formerly Rule 56(f), provides, “If a nonmovant shows by

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affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its

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opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain

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affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ.

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P. 56(d). To prevail on a Rule 56(d) motion, Plaintiff must file a timely motion specifically

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identifying the relevant information sought, where there is some basis for believing that the

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information actually exists. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009)

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(quotation marks and citation omitted). Plaintiff must demonstrate that the evidence sought actually

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exists and that it would prevent summary judgment. Blough, 574 F.3d at 1091 n.5 (quotation marks

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and citation omitted). Plaintiff’s motion for clarification was devoid of any reference to relevant

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information that he was seeking to prevent summary judgment. Plaintiff merely argued that the

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scheduling order was superceded by the order to respond to the summary judgment motion. Plaintiff

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did not identify the specific information he was seeking, demonstrate that it actually exists, and that

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it would prevent summary judgment, therefore Plaintiff was not entitled to relief under Rule 56(d).

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Plaintiff has failed to set forth any grounds entitling him to reconsideration of the order

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dismissing this action, with prejudice. Accordingly, Plaintiff’s motion for reconsideration, filed

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January 4, 2012, is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
b9ed48

January 26, 2012

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

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