Barry Lamon v. Tilton et al

Filing 97

ORDER DENYING Motion for Reconsideration, With Prejudice 96 , signed by District Judge Anthony W. Ishii on 4/9/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BARRY LAMON,

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CASE NO. 1:09-cv-00157-AWI-SKO PC
Plaintiff,

ORDER DENYING MOTION FOR
RECONSIDERATION, WITH PREJUDICE

v.
(Doc. 96)

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JOHN TILTON, et al.,
Defendants.
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Plaintiff Barry Lamon, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on January 26, 2009. On April 4, 2013, Plaintiff

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filed a motion seeking reconsideration of the Magistrate Judge’s order striking his second motion

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for an extension of time.

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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) (quotations marks and citation omitted). The

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moving party must demonstrate both injury and circumstances beyond his control. Id. (quotation

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marks and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show

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

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shown upon such prior motion, or what other grounds exist for the motion,” and “why the facts or

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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,” 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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On March 18, 2013, Plaintiff filed a motion seeking an extension of time to object to findings

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and recommendations filed on February 7, 2013. The Magistrate Judge granted Plaintiff’s motion

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on March 20, 2013, and on the same day, Plaintiff filed a second motion for an extension of time,

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which was stricken as duplicative and is the subject of the motion for reconsideration.

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The Magistrate Judge did not err. Plaintiff’s second motion was filed two days after his first

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motion and on the same day that the Court granted the relief he requested. Plaintiff’s desire to add

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into the record further evidence demonstrating he is being denied access to the courts does not entitle

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him to reconsideration. Fed. R. Civ. P. 60(b)(6); Marlyn Nutraceuticals, Inc., 571 F.3d at 880.

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(Doc. 96, Motion, p. 2.) Plaintiff was granted the relief he sought, resolving the matter.

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Accordingly, Plaintiff’s motion for reconsideration, filed on April 4, 2013, is HEREBY

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DENIED, with prejudice.

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IT IS SO ORDERED.

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Dated:
0m8i78

April 9, 2013
SENIOR DISTRICT JUDGE

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