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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BARRY LOUIS LAMON, 10 CASE NO. 1:09-cv-00205-LJO-SMS PC Plaintiff, 11 v. 12 ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ADAMS, et al., (Doc. 145) 13 Defendants. / 14 15 Plaintiff, Barry Louis Lamon (“Plaintiff”) is a state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed this action 17 on February 2, 2009. (Doc. 1.) Initially the Complaint was screened and went forward upon 18 Plaintiff’s consent to proceed only on the claims found cognizable at that time (Docs. 7, 8, 9). 19 Subsequently, the United States Supreme Court issued the decision in Ashcroft v. Iqbal, 20 ___ U.S. ___, 129 S.Ct. 1937 (2009), which ushered in stricter pleading standards. See Moss v. 21 U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009) (citing Iqbal; Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 555 (2007)). 23 On May 10, 2011, an order issued (“the Re-screening Order”) in which Plaintiff’s 24 Complaint was re-screened and found to only state cognizable claims against Defendants Baer, 25 Valdez, Buenos, Lee, Ponce, and Purvis for use of excessive force, deliberate indifference to a 26 threat to Plaintiff’s safety, and retaliation; and Plaintiff was ordered to either file an amended 27 complaint or notify the Court of his willingness to proceed only on his cognizable claims. (Doc. 28 111.) Plaintiff filed objections and moved for reconsideration. (Doc. 116.) Plaintiff’s objections 1 1 were overruled; his request for reconsideration was denied; and he was ordered to either file a 2 first amended complaint or to notify the Court of his intent to proceed on the claims found 3 cognizable in the Re-screening Order. (Doc. 117.) On June 8, 2011, Plaintiff notified the Court 4 that he is willing to proceed on the claims found to be cognizable in the re-screening order (Doc. 5 118) and the action has proceeded (Doc. 121). 6 Currently before the Court is “Plaintiff’s Rule 60(b) Fed. R. Civ. P. Motion for 7 Reconsideration Based upon the creation of intervening Ninth Circuit Controlling Law” (“this 8 Recon. Motion”). (Doc. 145.) In this motion, not only does Plaintiff once again seek 9 reconsideration of the Re-screening Order, he also requests that the order (“Vacate F&R Order”) 10 (Doc. 102), which partially vacated a findings and recommendation to deny defense summary 11 judgment (Doc. 84), be vacated. (Doc. 145, Recon. Mot., 2:8-14.) Plaintiff filed objections to 12 the Vacate F&R Order (Doc. 106) which, in an order following a telephonic status conference 13 (“the TSC Order”), were denied as moot with numerous other objections and filings (Doc. 109) 14 and the case was referred back to the magistrate judge for further proceedings which included 15 issuance of the Re-screening Order (Docs. 110, 111). Plaintiff subsequently filed objections 16 (Doc. 113) to the TSC Order which were overruled and any reconsideration sought thereon was 17 denied (Doc. 115). Defendants have filed an opposition to this Recon. Motion (Doc. 149) and 18 Plaintiff has replied (Doc. 152). This Recon Motion is deemed submitted. L.R. 230(l). 19 As noted by the above history in this case, this Recon Motion is duplicative as it seeks 20 reconsideration of prior orders on which Plaintiff’s prior objections have been overruled and 21 reconsideration denied. Further, Plaintiff’s solitary new argument in this Recon Motion that 22 Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010) is intervening case law is unavailing as the Re- 23 screening Order both cited and adhered to the liberal construction parameters of Hebbe for 24 screening pro se inmate filings. Further, as previously indicated, Plaintiff’s disagreement with 25 the rulings in question is not grounds for reconsideration. Fed. R. Civ. P. 60(b)(6); Local Rule 26 230(j); Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 27 2009); Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). 28 /// 2 1 Accordingly, it is HEREBY ORDERED that “Plaintiff’s Rule 60(b) Fed. R. Civ. P. 2 Motion for Reconsideration Based upon the creation of intervening Ninth Circuit Controlling 3 Law,” (Doc. 145) filed on December 21, 2011 is denied as duplicative and for the reasons stated 4 in the prior orders overruling Plaintiff’s objections and denying reconsideration (Docs. 115, 117). 5 Further motions for reconsideration on the orders discussed herein will not be entertained and 6 will be stricken upon filing. 7 IT IS SO ORDERED. 8 Dated: b9ed48 September 6, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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