Scott v. Palmer et al

Filing 132

ORDER signed by District Judge Lawrence J. O'Neill on 3/12/2013 deeming 11/19/2012 103 Order granting Plaintiff's Motion for Reconsideration reissued and denying 112 Motion for Sanctions. (Lundstrom, T)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 FLOYD SCOTT, CASE NO. 1:09-cv-01329-LJO-SKO PC 8 Plaintiff, ORDER DEEMING NOVEMBER 19, 2012, ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION REISSUED 9 v. 10 J. PALMER, et al., (Doc. 103) 11 Defendants. ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS 12 13 (Doc. 112) / 14 15 I. Defendants’ Motion for Reconsideration 16 Plaintiff Floyd Scott, a state prisoner proceeding pro se, filed this civil rights action pursuant 17 to 42 U.S.C. § 1983 on July 29, 2009. This action is currently proceeding against Defendants 18 Palmer, Rivera, and Lopez on Plaintiff’s claim that while he was at Kern Valley State Prison in 19 Delano, California, Defendant Palmer used excessive physical force against him and Defendants 20 Rivera and Lopez failed to intervene, in violation of his rights under the Eighth Amendment of the 21 United States Constitution. 22 On January 11, 2013, Defendants filed a motion for reconsideration of the Court’s November 23 19, 2012, order granting Plaintiff’s motion for reconsideration and setting aside the order dismissing 24 part of Plaintiff’s excessive force claim as barred by the favorable termination rule. Fed. R. Civ. P. 25 60(b); Wilkinson v. Dotson, 544 U.S. 74, 81-2, 125 S.Ct. 1242 (2005). In their motion for 26 reconsideration, Defendants argued that the order of November 19, 2012, was issued prematurely 27 because, pursuant to Cal. Civ. Proc. § 391.6, the action was stayed until ten days after a ruling on 28 their vexatious litigant motion. (Doc. 109.) 1 1 Following submission of the motion upon the record, Local Rule 230(l), the Court issued an 2 order on February 21, 2013, in which it granted Defendants’ motion for reconsideration but declined 3 to vacate its earlier order, Fed. R. Civ. P. 60(b)(1). (Doc. 116.) The Court provided Defendants with 4 fifteen days within which to file either an opposition or a statement of non-opposition to Plaintiff’s 5 motion for reconsideration, provided Plaintiff with fifteen days within which to file a reply if 6 Defendants filed an opposition rather than a statement of non-opposition, and informed the parties 7 that once the motion has been submitted, the Court will determine the appropriate course of action 8 with regard to its existing ruling. On March 8, 2013, Defendants filed a statement of non-opposition 9 to Plaintiff’s motion for reconsideration. 10 Plaintiff’s motion for reconsideration is now submitted upon the record, and the order 11 granting the motion for reconsideration, filed on November 19, 2012, shall be deemed reissued. 12 II. Plaintiff’s Motion for Sanctions 13 On February 8, 2013, Plaintiff filed a motion seeking the imposition of sanctions against 14 Defendants’ counsel for filing the motion for reconsideration and for filing an opposition to his 15 motion to compel. Local Rule 110, under which Plaintiff seeks sanctions, provides that “[f]ailure 16 of counsel or of a party to comply with these Rules or with any order of the Court may be grounds 17 for imposition by the Court of any and all sanctions authorized by statute or Rule or within the 18 inherent power of the Court.” 19 For the reasons set forth in the order filed on February 21, 2013, Defendants’ motion for 20 reconsideration was meritorious and they were entitled to an opportunity to file an opposition or a 21 statement of non-opposition to Plaintiff’s motion for reconsideration. Fed. R. Civ. P. 60(b)(1). 22 Further, on February 22, 2013, the Court denied Plaintiff’s motion to compel as premature. 23 Plaintiff’s contention that Defendants’ motion for reconsideration and opposition to his 24 motion to compel were frivolous and harassing is without merit. There is no basis for the imposition 25 of sanctions against counsel and Plaintiff’s motion is denied. 26 /// 27 /// 28 /// 2 1 III. Order 2 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 3 1. Plaintiff’s motion for reconsideration is now submitted upon the record and the order 4 granting the motion for reconsideration, filed on November 19, 2012, is HEREBY 5 DEEMED REISSUED; and 6 2. Plaintiff’s motion for sanctions, filed on February 8, 2013, is DENIED. 7 8 9 10 IT IS SO ORDERED. Dated: March 12, 2013 /s/ Lawrence J. O'Neill 66h44d UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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