Branch v. Grannis, et al.,

Filing 165

ORDER Denying Motion for Reconsideration 153 , signed by Magistrate Judge Gary S. Austin on 4/3/15. (Verduzco, M)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LOUIS BRANCH, 9 Plaintiff, 10 11 vs. 1:08-cv-01655-AWI-GSA-PC ORDER DENYING MOTION FOR RECONSIDERATION (Doc. 153.) N. GRANNIS, et al., 12 Defendants. 13 14 15 I. BACKGROUND 16 Louis Branch (APlaintiff@) 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 November 14, 2014, Plaintiff filed an objection to the court’s order striking 24 Plaintiff’s surreply, issued on October 30, 2014. (Doc. 149.) The court construes Plaintiff’s 25 objections as a motion for reconsideration of the court’s October 30, 2014 order. 26 II. MOTION FOR RECONSIDERATION 27 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 28 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with 1 1 reasonable diligence, could not have been discovered in time to move for a new trial under 2 Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 3 misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies 4 relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to 5 prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” 6 exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and 7 citation omitted). The moving party “must demonstrate both injury and circumstances beyond 8 his control . . . .” 9 reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or different 10 facts or circumstances are claimed to exist which did not exist or were not shown upon such 11 prior motion, or what other grounds exist for the motion.” Id. (internal quotation marks and citation omitted). In seeking 12 “A motion for reconsideration should not be granted, absent highly unusual 13 circumstances, unless the district court is presented with newly discovered evidence, committed 14 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 15 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations 16 marks and citations omitted, and “[a] party seeking reconsideration must show more than a 17 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 18 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 19 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a 20 strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare 21 Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and 22 reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 23 24 Here, Plaintiff argues that his surreply should not have been stricken, because he was replying to a new argument made by Defendants in their reply. 1 Plaintiff asserts that 25 26 27 28 1 On September 2, 2014, Defendants filed a motion for summary judgment. (Doc. 138.) Plaintiff filed an opposition to the motion on September 29, 2014. (Doc. 142.) On October 6, 2014, Defendants filed a reply to Plaintiff’s opposition. (Doc. 145.) On October 27, 2014, Plaintiff filed a surreply titled “Objection to Defendants’ Reply to Plaintiff’s Summary Judgment Opposition.” (Doc. 147.) On October 30, 2014, the court issued an order striking Plaintiff’s surreply. (Doc. 149.) 2 1 Defendants raised the issue of the untimeliness of Plaintiff’s exhaustion of administrative 2 remedies, which is a new argument not addressed in their reply to Plaintiff’s opposition. 3 Plaintiff’s argument is not persuasive. Plaintiff did not make any argument addressing 4 the court’s reason for striking the surreply, which was that “[t]he Court neither requested a 5 surreply nor granted a request on behalf of Plaintiff to file one.” (Order, Doc. 149 at 2:14-16.) 6 Moreover, Plaintiff’s surreply was not limited to the untimeliness issue. Plaintiff has not 7 presented facts or law of a strongly convincing nature to induce the court to reverse its prior 8 decision. Therefore, the motion for reconsideration shall be denied. 9 III. 10 11 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration, filed on November 14, 2014, is DENIED. 12 13 14 15 IT IS SO ORDERED. Dated: April 3, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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