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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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Plaintiff,

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vs.

1:08-cv-01655-AWI-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 153.)

N. GRANNIS, et al.,

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Defendants.

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I.

BACKGROUND

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Louis Branch (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on July 7, 2008. (Doc. 1.) This action now proceeds on the Third

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Amended Complaint, filed by Plaintiff on July 10, 2013, against defendants Umphenour,

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Szalai, and Alvarez (“Defendants”) for deliberate indifference to a serious risk to Plaintiff’s

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safety in violation of the Eighth Amendment, and against defendant Umphenour for retaliation

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in violation of the First Amendment. (Doc. 94.)

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On November 14, 2014, Plaintiff filed an objection to the court’s order striking

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Plaintiff’s surreply, issued on October 30, 2014. (Doc. 149.) The court construes Plaintiff’s

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objections as a motion for reconsideration of the court’s October 30, 2014 order.

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with
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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). 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 . . .”

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exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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

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his control . . . .”

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reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion.”

Id. (internal quotation marks and citation omitted).

In seeking

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

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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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

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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.)
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Defendants raised the issue of the untimeliness of Plaintiff’s exhaustion of administrative

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remedies, which is a new argument not addressed in their reply to Plaintiff’s opposition.

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Plaintiff’s argument is not persuasive. Plaintiff did not make any argument addressing

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the court’s reason for striking the surreply, which was that “[t]he Court neither requested a

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surreply nor granted a request on behalf of Plaintiff to file one.” (Order, Doc. 149 at 2:14-16.)

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Moreover, Plaintiff’s surreply was not limited to the untimeliness issue. Plaintiff has not

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presented facts or law of a strongly convincing nature to induce the court to reverse its prior

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decision. Therefore, the motion for reconsideration 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

reconsideration, filed on November 14, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

April 3, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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