Shepard v. Cohen et al

Filing 38

ORDER DENYING 36 , 37 Plaintiff's Motions for Reconsideration signed by Judge Oliver W. Wanger on 5/20/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LAMONT SHEPARD,

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CASE NO. 1:09-cv-01628-OWW-GBC (PC)

Plaintiff,
ORDER DENYING PLAINTIFF’S MOTIONS
FOR RECONSIDERATION

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v.

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COHEN, et al.,

(Docs. 36, 37)

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Defendants.
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/

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I.

Plaintiff’s Motion for Reconsideration

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A.

Procedural History

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Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 25, 2011, the Court submitted

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Findings and Recommendations in which the Magistrate Judge recommended granting Defendants’

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unenumerated 12(b) motion to dismiss due to Plaintiff’s failure to exhaust administrative remedies.

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(Doc. 28). On February 28, 2011, the Court adopted the Findings and Recommendations and

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dismissed the action for failure toe exhaust administrative remedies. On March 9, 2011, Plaintiff

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filed a “motion to Reopen Case Sua Sponte,” and “Motion for Reconsideration.” (Docs. 36, 37).

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The Court shall address both motions as a motion for reconsideration.

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B.

Standards for Reconsideration

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. The Rule permits a district court to relieve a party from a final order or judgment on
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grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud . . . of an adverse

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party, . . . or (6) any other reason justifying relief from the operation of the judgment.” Fed. R. Civ.

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P. 60(b). The motion for reconsideration must be made within a reasonable time, in any event “not

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more than one year after the judgment, order, or proceeding was entered or taken.” Id.

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Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin

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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)

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(en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce

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the court to reverse its prior decision. See e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634

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F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514

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(9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988). The Ninth Circuit has stated that “[c]lause

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60(b)(6) is residual and ‘must be read as being exclusive of the preceding clauses.’” Corex Corp. v.

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United States, 638 F.2d 119 (9th Cir. 1981); accord LaFarge Conseils et Etudes, S.A. v. Kaiser

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Cement, 791 F.2d 1334, 1338 (9th Cir. 1986).

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‘extraordinary circumstances.’” Id. When filing a motion for reconsideration, Local Rule 230(j)(3)

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& (4) requires a party to show the “new or different facts or circumstances are claimed to exist which

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did not exist for the motion; and . . . why the facts or circumstances were not shown at the time of

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the prior motion.”

Accordingly, “the clause is reserved for

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In his motions for reconsideration, Plaintiff argues that although administrative remedies

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were exhausted after he filed the action, the action should still proceed so as to conserve judicial

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resources. (Docs. 36, 37). However, as the Magistrate Judge observed in the Findings and

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Recommendations which the Court adopted, the Court must dismiss a case without prejudice even

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when there is exhaustion while the suit is pending. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.

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2005). Plaintiff fails both to show new or different facts or circumstances which did not exist at the

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time the Court dismissed the action for failure to exhaust administrative remedies.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds its order adopting the Findings and Recommendations to dismiss Plaintiff’s action for

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failure to exhaust administrative remedies is supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motions for reconsideration (Docs.
36, 37), filed March 9, 2011, is DENIED.
IT IS SO ORDERED.
Dated:
May 20, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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