Lamon v. Adams et al

Filing 115

ORDER OVERRULING Objections and DENYING Motion for Reconsideration 113 , signed by District Judge Lawrence J. O'Neill on 5/16/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BARRY LOUIS LAMON,

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CASE NO. 1:09-cv-00205-LJO-SMS PC

Plaintiff,

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v.

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ORDER OVERRULING OBJECTIONS
AND DENYING MOTION
FOR RECONSIDERATION

ADAMS, et al.,

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(Doc. 113)
Defendants.
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Plaintiff, Barry Louis Lamon (hereinafter “Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 2,

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2009. On May 12, 2011, Plaintiff filed objections to the Magistrate Judge’s Order Following

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Telephonic Status Conference. (Doc. 113.) Plaintiff’s objections are construed as a motion for

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reconsideration.

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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

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to 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 . . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j)

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requires, in relevant part, that Plaintiff show “what new or different facts or circumstances are

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claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the time of
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the prior motion.”
“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,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original).

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Plaintiff has not shown any new or different facts or circumstances, newly discovered

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evidence, commission of clear error, or an intervening change of law to support his motion.

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Plaintiff’s mere disagreement with the Court’s ruling, which is all that is shown in the instant

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motion, is not grounds for reconsideration.

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Despite the fact that Plaintiff is unhappy with the consequences, the Order Following

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Status Conference falls well within the Court’s inherent powers to manage its docket and to most

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efficiently utilize limited resources.1 The Court is required to screen complaints brought by

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prisoners seeking relief against a governmental entity or officer or employee of a governmental

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entity, 28 U.S.C. § 1915A(a), and must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief

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may be granted, or that seek monetary relief from a defendant who is immune from such relief,

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28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may

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have been paid, the court shall dismiss the case at any time if the court determines that . . . the

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action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii) (emphasis added). Accordingly, screening and re-screening that may result in

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dismissal of claims and/or defendants can be done at any time and should be done when

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clarifications in pleading standards are rendered by higher courts which narrow and/or clarify

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The Order Following Status Conference could have issued without the courtesy to the parties of holding a
status conference which served no purpose other than to notify the parties in advance of the procedural re-direction
of this case.

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claims raised in any pending action. It is merely coincidence that this action has not previously

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been reviewed in light of the changed pleading standards as delineated in Ashcroft v. Iqbal, ___

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U.S. ___, 129 S.Ct. 1937 (2009). Ref. Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).

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Further, Plaintiff does not have a constitutional right to the appointment of counsel in this

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action. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d

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1349, 1353 (9th Cir. 1981). The Court may request the voluntary assistance of counsel pursuant

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to 28 U.S.C. § 1915(e)(1), but will do so only if exceptional circumstances exist. Palmer, 560

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F.3d at 970. In making this determination, the likelihood of success on the merits and the ability

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of Plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved

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must be evaluated. Id. Neither consideration is dispositive and they must be viewed together.

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Id. Plaintiff’s disagreement with the Court’s order is not sufficient to support his motion for

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reconsideration. Plaintiff has not established that he is likely to prevail on the merits and the

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record demonstrates that Plaintiff is able to articulate his claims pro se.

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To the extent that the document Plaintiff filed May 12, 2011 objects to the Order

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Following Telephonic Status Conference, it is HEREBY OVERRULED; and to the extent that

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the document Plaintiff filed May 12, 2011 seeks reconsideration of the Order Following

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Telephonic Status Conference, it is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

May 16, 2011

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

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