Ivory v. Tilton, et al.

Filing 86

ORDER denying 82 , 83 Motions for Reconsideration signed by Chief Judge Anthony W. Ishii on 5/9/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN IVORY,

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1:09-cv-01272-AWI-GSA-PC

Plaintiff,

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ORDER DENYING PLAINTIFF'S MOTIONS
FOR RECONSIDERATION
(Doc. 82, 83.)

vs.

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JAMES E. TILTON, et al.,

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Defendants.
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I.

BACKGROUND

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Norman Ivory (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's original Complaint filed on July

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20, 2009, against Correctional Officer S. Meraz for use of excessive force in violation of the Eighth

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Amendment. (Doc. 1.)

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On March 23, 2012, the Court granted defendant Sexton’s motion to dismiss and dismissed

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defendant Sexton from this action, based on Plaintiff’s failure to exhaust remedies for the claims

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against him. (Doc. 79.) On April 17, 2012 and April 20, 2012, Plaintiff filed motions for

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reconsideration of the order dismissing defendant Sexton. (Doc. 82, 83.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d

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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must
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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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

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were not shown upon such prior motion, or what other grounds exist for the 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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Plaintiff argues that the Court should reconsider its decision because Plaintiff forgot to assert,

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in his opposition to defendant Sexton’s motion to dismiss, that prison officials failed to follow their

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own practice, customs, and policies in the processing his prison appeal. Motions for reconsideration

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are not the place for parties to make new arguments not raised in their original briefs. Zimmerman

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v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001); Northwest Acceptance Corp. v. Lynnwood

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Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Plaintiff has not demonstrated that the Court

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committed clear error, or presented the Court with new information of a strongly convincing nature,

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to induce the Court to reverse its prior decision. Therefore, the motions for reconsideration shall be

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denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motions for

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reconsideration, filed on April 17, 2012 and April 20, 2012, are DENIED.

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IT IS SO ORDERED.

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Dated:
0m8i78

May 9, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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