Lamon v. Adams et al

Filing 195

ORDER Overruling Plaintiff's Objections and Denying his 193 Motion for Reconsideration signed by Magistrate Judge Sandra M. Snyder on 12/11/2012. (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 OVERRULING PLAINTIFF’S
OBJECTIONS AND DENYING HIS
MOTION FOR RECONSIDERATION

ADAMS, et al.,

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(Docs. 193)
Defendants.
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Plaintiff, Barry Louis Lamon (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and is proceeding on the

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Complaint, filed February 2, 2009, only on Plaintiff’s claims against Defendants Baer, Valdez,

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Buenos, Lee, Ponce, and Purvis for excessive use of force and deliberate indifference to a threat

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to Plaintiff’s safety in violation of the Eighth Amendment and for retaliation in violation of the

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First Amendment.

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On November 21, 2012, Plaintiff filed a document responding to, objecting to, and

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seeking that the undersigned reconsider three recent orders that issued on November 13, 2012

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(Docs. 189, 190, 191) in this case. (Doc. 193.)

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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. However, Rule 60(b)(6) “is to be used sparingly as an

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equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary

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circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal

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quotations marks and citation omitted). The moving party “must demonstrate both injury and
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circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted).

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Further, Local Rule 230(j) requires, in relevant part, that Plaintiff 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 prior

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motion, or what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown at the time of the prior motion.”

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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,” 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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The first order (“the First Order”) to which Plaintiff responds/objects/seeks

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reconsideration ordered the parties to meet and confer regarding their discovery disputes; allowed

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both sides to file a motion to compel within ninety days on any discovery disputes that they

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cannot work out amongst themselves; denied Plaintiff’s motion to compel without prejudice to

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refiling within ninety days; and granted Defendants’ extension of time to file a motion to compel

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within ninety days. (Doc. 189.) The First Order imposed the requirement of conferring on the

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parties in this action similar to that which is routinely required of litigants in regular civil actions

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in this court. See L.R. 251. Contrary to Plaintiff’s reading of it, the First Order does not allow

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either side to propound new/additional discovery and neither side need provide each other that

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which has previously been produced. Rather, the First Order issued to bring the parties together

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to attempt informal resolution of their discovery disputes as to further/additional responses that

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they desire from each other (i.e. the subject of motions to compel).

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The second order (“the Second Order”) to which Plaintiff responds/objects/seeks

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reconsideration merely notified Plaintiff of the rights and requirements for opposing a motion for

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summary judgment as required by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). (Doc. 190.)
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Pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), the Court must ensure that Plaintiff, a

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pro se inmate, receives this notice near the time a motion for summary judgment is filed against

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him and before a ruling thereon is made. While Plaintiff is correct that Defendants included a

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version of such notice with their motion for summary judgment (Doc. 175-1), it did not contain

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all of the information that is in the version from the court (Doc. 190). Plaintiff was fortunate to

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be served with both versions of notice so that he might be fully informed of the requirements to

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adequately oppose Defendants’ motion for summary judgment (Doc. 175). Plaintiff’s objection

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that the Second Order “has provided the defendants to, basically, do infinite (it would seem)

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summary judgment motions or to do them until . . . they get them right” (ellipsis in original) is

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wholly without merit. The Second Order only applies to Plaintiff to ensure he has adequate

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information to oppose a defense motion for summary judgment – it has no effect whatsoever on

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Defendants. There is nothing about the Second Order that is adverse to Plaintiff in any way. The

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Second Order does not allow Defendants to file any further motion(s) for summary judgment.

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The third order (“the Third Order”) to which Plaintiff responds/objects/seeks

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reconsideration gave Plaintiff three options regarding his opposition to Defendants’ motion for

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summary judgment: (1) to stand on the opposition he previously filed; (2) to file a notice within

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thirty days of the service of that order that he desired to withdraw the opposition that he

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previously filed and to file a new opposition after the discovery disputes are resolved (as

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addressed in the First Order); or (3) to withdraw the opposition that he previously filed and to file

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a new opposition within thirty days of the service of that order without waiting for resolution of

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the discovery disputes. (Doc. 191.) Plaintiff’s argument that the Third Order allows Defendants

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to file a third motion for summary judgment which will “strategize [sic] around [Plaintiff’s]

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latest argument and evidence in opposition” could not be farther from the truth. To the contrary,

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the Third Order gives Plaintiff the option to change his strategy in opposing Defendants’ most

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recent motion for summary judgment (Doc. 175) -- to which Defendants are bound.

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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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Rather, it appears that Plaintiff has entirely misread the three orders he seeks to challenge – all of
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which issued for his benefit.

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Accordingly, IT IS HEREBY ORDERED that, to the extent that the document Plaintiff

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filed November 21, 2012 (Doc. 193) objects to the three orders that issued on November 13,

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2012 (Docs. 189, 190, 191), it is OVERRULED; and to the extent that the document Plaintiff

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filed November 21, 2012 (Doc. 193) seeks reconsideration of the three orders that issued on

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November 13, 2012 (Docs. 189, 190, 191), it is DENIED.

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IT IS SO ORDERED.

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Dated:
icido3

December 11, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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