McElroy v. Cox et al

Filing 135

ORDER denying 130 Motion for reconsideration signed by Magistrate Judge Gary S. Austin on 5/7/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATWAHN McELROY,

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1:08-cv-01221-LJO-GSA-PC

Plaintiff,

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v.

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ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 130.)

ROY COX, et al.,

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Defendants.
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/
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I.

BACKGROUND

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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Latwahn McElroy, a state

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prisoner proceeding pro se and in forma pauperis. This case is scheduled for jury trial to commence

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on June 19, 2012 at 8:30 a.m. before District Judge Lawrence J. O’Neill.

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On April 16, 2012, the court entered an order denying Plaintiff's motion to correspond with

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his inmate witness housed at another correctional facility. (Doc. 123.) On May 2, 2012, Plaintiff

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filed a motion for the court to reconsider its decision. (Doc. 130.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d
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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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to show “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the 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,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff argues that he will be disadvantaged if he is unable to communicate with witnesses

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in confidence, and that as an incarcerated litigant, he is not being provided the same rights as an

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unincarcerated litigant.

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Plaintiff was informed in the Court's prior order that the Court lacks jurisdiction to issue an

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order allowing Plaintiff to correspond with his witnesses. Plaintiff has not demonstrated that the

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Court committed clear error, or presented the Court with new information of a strongly convincing

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nature, to induce the Court to reverse its prior decision. Therefore, the motion for reconsideration

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shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

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reconsideration, filed on May 2, 2012, is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

May 7, 2012

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

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