Lamon v. Adams et al
Filing
174
ORDER Denying Plaintiff's 145 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 09/06/2012. (Flores, E)
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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 DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
ADAMS, et al.,
(Doc. 145)
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Defendants.
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Plaintiff, Barry Louis Lamon (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed this action
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on February 2, 2009. (Doc. 1.) Initially the Complaint was screened and went forward upon
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Plaintiff’s consent to proceed only on the claims found cognizable at that time (Docs. 7, 8, 9).
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Subsequently, the United States Supreme Court issued the decision in Ashcroft v. Iqbal,
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___ U.S. ___, 129 S.Ct. 1937 (2009), which ushered in stricter pleading standards. See Moss v.
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U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009) (citing Iqbal; Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555 (2007)).
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On May 10, 2011, an order issued (“the Re-screening Order”) in which Plaintiff’s
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Complaint was re-screened and found to only state cognizable claims against Defendants Baer,
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Valdez, Buenos, Lee, Ponce, and Purvis for use of excessive force, deliberate indifference to a
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threat to Plaintiff’s safety, and retaliation; and Plaintiff was ordered to either file an amended
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complaint or notify the Court of his willingness to proceed only on his cognizable claims. (Doc.
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111.) Plaintiff filed objections and moved for reconsideration. (Doc. 116.) Plaintiff’s objections
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were overruled; his request for reconsideration was denied; and he was ordered to either file a
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first amended complaint or to notify the Court of his intent to proceed on the claims found
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cognizable in the Re-screening Order. (Doc. 117.) On June 8, 2011, Plaintiff notified the Court
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that he is willing to proceed on the claims found to be cognizable in the re-screening order (Doc.
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118) and the action has proceeded (Doc. 121).
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Currently before the Court is “Plaintiff’s Rule 60(b) Fed. R. Civ. P. Motion for
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Reconsideration Based upon the creation of intervening Ninth Circuit Controlling Law” (“this
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Recon. Motion”). (Doc. 145.) In this motion, not only does Plaintiff once again seek
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reconsideration of the Re-screening Order, he also requests that the order (“Vacate F&R Order”)
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(Doc. 102), which partially vacated a findings and recommendation to deny defense summary
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judgment (Doc. 84), be vacated. (Doc. 145, Recon. Mot., 2:8-14.) Plaintiff filed objections to
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the Vacate F&R Order (Doc. 106) which, in an order following a telephonic status conference
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(“the TSC Order”), were denied as moot with numerous other objections and filings (Doc. 109)
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and the case was referred back to the magistrate judge for further proceedings which included
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issuance of the Re-screening Order (Docs. 110, 111). Plaintiff subsequently filed objections
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(Doc. 113) to the TSC Order which were overruled and any reconsideration sought thereon was
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denied (Doc. 115). Defendants have filed an opposition to this Recon. Motion (Doc. 149) and
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Plaintiff has replied (Doc. 152). This Recon Motion is deemed submitted. L.R. 230(l).
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As noted by the above history in this case, this Recon Motion is duplicative as it seeks
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reconsideration of prior orders on which Plaintiff’s prior objections have been overruled and
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reconsideration denied. Further, Plaintiff’s solitary new argument in this Recon Motion that
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Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010) is intervening case law is unavailing as the Re-
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screening Order both cited and adhered to the liberal construction parameters of Hebbe for
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screening pro se inmate filings. Further, as previously indicated, Plaintiff’s disagreement with
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the rulings in question is not grounds for reconsideration. Fed. R. Civ. P. 60(b)(6); Local Rule
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230(j); Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
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2009); Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008).
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Accordingly, it is HEREBY ORDERED that “Plaintiff’s Rule 60(b) Fed. R. Civ. P.
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Motion for Reconsideration Based upon the creation of intervening Ninth Circuit Controlling
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Law,” (Doc. 145) filed on December 21, 2011 is denied as duplicative and for the reasons stated
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in the prior orders overruling Plaintiff’s objections and denying reconsideration (Docs. 115, 117).
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Further motions for reconsideration on the orders discussed herein will not be entertained and
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will be stricken upon filing.
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IT IS SO ORDERED.
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Dated:
b9ed48
September 6, 2012
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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