Branch v. Grannis, et al.,

Filing 140

ORDER DENYING Plaintiff's 136 Request for Reconsideration as Untimely signed by District Judge Anthony W. Ishii on 9/11/2014. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LOUIS BRANCH, 10 Plaintiff, 11 12 vs. 1:08-cv-01655-AWI-GSA-PC ORDER DENYING PLAINTIFF’S REQUEST FOR RECONSIDERATION AS UNTIMELY (Doc. 136.) N. GRANNIS, et al., 13 Defendants. 14 15 I. BACKGROUND 16 Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 17 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 18 commencing this action on July 7, 2008. (Doc. 1.) This action now proceeds on the Third 19 Amended Complaint, filed by Plaintiff on July 10, 2013, against defendants Umphenour, 20 Szalai, and Alvarez (“Defendants”) for deliberate indifference to a serious risk to Plaintiff’s 21 safety in violation of the Eighth Amendment, and against defendant Umphenour for retaliation 22 in violation of the First Amendment. (Doc. 94.) 23 On October 21, 2013 and February 21, 2014, the court issued Scheduling Orders 24 establishing pretrial deadlines, including a deadline of June 21, 2014 to complete discovery, 25 and a deadline of September 2, 2014 for the filing of pretrial dispositive motions. (Docs. 109, 26 120.) The discovery deadline is now expired. 27 28 On August 18, 2014, Plaintiff filed a Request for Reconsideration by the District Judge of three of the Magistrate Judge’s orders in this case. (Doc. 136.) 1 1 II. REQUEST FOR RECONSIDERATION BY DISTRICT JUDGE 2 Local Rule 303 provides that "[a] party seeking reconsideration of the Magistrate 3 Judge's ruling shall file a request for reconsideration by a Judge . . . specifically designat[ing] 4 the ruling, or party thereof, objected to and the basis for that objection. This request shall be 5 captioned 'Request for Reconsideration by the District Court of Magistrate Judge's Ruling.'" 6 Local Rule 303(c). "The standard that the assigned Judge shall use in all such requests is the 7 'clearly erroneous or contrary to law' standard set forth in 28 U.S.C. ' 636(b)(1)(A)." Local 8 Rule 303(f). “The District Judge in the case must consider timely objections and modify or set 9 aside any part of [a Magistrate Judge’s non-dispositive] order that is clearly erroneous or is 10 contrary to law.” Fed. R. Civ. P. 72(a). “A party may serve and file objections to the order 11 within 14 days after being served with a copy[, and a] party may not assign as error a defect in 12 the order not timely objected to. Id. 13 Plaintiff seeks reconsideration of three of the Magistrate Judge’s orders in this case: (1) 14 Screening Order filed and served upon Plaintiff on May 11, 2011 (Doc. 29); (2) Screening 15 Order filed and served upon Plaintiff on September 16, 2013 (Doc. 103); and (3) Order 16 Denying Appointment of Counsel filed and served upon Plaintiff on July 24, 2014 (Doc. 134). 17 All three of these orders were served upon Plaintiff more than 14 days before Plaintiff filed his 18 request for reconsideration, which makes the request untimely under Rule 72. Therefore, 19 Plaintiff’s request shall be denied as untimely. 20 III. 21 22 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s reconsideration, filed on August 18, 2014, is DENIED as untimely. 23 24 25 IT IS SO ORDERED. Dated: September 11, 2014 SENIOR DISTRICT JUDGE 26 27 28 2 request for

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