Griffin v. Kern Medical Center

Filing 47

ORDER DENYING Reconsideration of Order Dismissing Action and Judgment Thereon; ORDER DENYING 46 Application to Proceed In Forma Pauperis signed by Magistrate Judge Michael J. Seng on 12/19/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT GRIFFIN,

CASE No. 1:09-cv-01782-MJS (PC)

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ORDER DENYING RECONSIDERATION
OF ORDER DISMISSING ACTION AND
JUDGMENT THEREON

Plaintiff,

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v.

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(ECF No. 45)
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KERN MEDICAL CENTER, et al.,

ORDER DENYING APPLICATION TO
PROCEED IN FORMA PAUPERIS

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Defendants.

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(ECF No. 46)
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I.

PROCEDURAL HISTORY

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Plaintiff Robert Griffin is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (Complaint,
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ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent to Magistrate,
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ECF No. 7.)
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The Court found Plaintiff’s First Amended Complaint (First Amended Complaint,
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ECF No. 27) stated a cognizable Fourteenth Amendment1 claim for inadequate medical

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care against Defendants Frank Chin and John Doe. (Order Finding and Dismissing
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Claims, ECF No. 28.) On December 2, 2011, the Court ordered the United States
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Plaintiff was a pre-trial detainee at times relevant.

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Marshal to initiate service of process on Defendant Chin, with service to be completed

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by April 5, 2012. (Order Directing Service, ECF No. 32.)
Defendant Chin, however, could not be located for service despite numerous

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attempts by the Marshal. (Summons Return Unexecuted, ECF No. 39.) The Court

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issued an order requiring Plaintiff to show cause not later than July 31, 2012, why his

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case should not be dismissed for failure to provide sufficient information to effectuate

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service of process. (Order to Show Cause, ECF No. 41.) Plaintiff responded to the

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order to show cause on July 9, 2012, requesting that the Court permit him to proceed

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against previously dismissed Defendant, Kern Medical Center; according to Plaintiff,

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Kern Medical Center was maliciously protecting and concealing Defendant Dr. Chin.

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(Response to Order to Show Cause, ECF No. 42.) The Court issued its order on July

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23, 2012, denying the request and dismissing the action without prejudice for failure to

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provide information sufficient to effect timely service. (Order Dismiss., ECF No. 43.)

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Judgment was entered thereon. (J. Dismiss. Action, ECF No. 44.)
Plaintiff filed on December 5, 2012, a purported complaint (Sec. Am. Compl.,

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ECF No. 45), wherein he seeks “only to reopen old case”, alleging that he “got new

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evidence that Dr. Chin does work at Kern Medical Center”, and seeking to “settle [the]

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case.” (Sec. Am. Compl., at 1-2.) Plaintiff also filed on December 5, 2012, a purported

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Application to Proceed In Forma Pauperis. (Appl. for IFP, ECF No. 46.) The Court

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construes the complaint filed December 5th as a request for reconsideration of the July

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23, 2012 order dismissing action and judgment entered thereon.

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II.

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LEGAL STANDARD
Rule 60(b)(6) allows the Court to relieve a party from an order and judgment for

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any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable

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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). The

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moving party “must demonstrate both injury and circumstances beyond his control . . . .”

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Id. In seeking reconsideration of an order, Local Rule 230(j) requires a party to identify
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the motion or order in issue and when it was made, and 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

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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

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circumstances, unless the . . . court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009),

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and “[a] party seeking reconsideration must show more than a disagreement with the

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[c]ourt's decision, and recapitulation . . .” of that which was already considered by the

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court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,

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1131 (E.D. Cal. 2001).

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III.

ARGUMENT
Plaintiff proffers no factual or legal argument in his new filing. He simply asks to

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14 re-open the case based on the statement that he has new evidence that Defendant Chin
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IV.

ANALYSIS
Plaintiff's purported December 5th complaint, construed as a motion for

18 reconsideration of the Court’s July 23, 2012 order dismissing the action and judgment
19 entered thereon, lacks merit and shall be denied.
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This action, originally filed on September 30, 2009, was dismissed by the Court

21 sua sponte because Plaintiff, proceeding in pro se, failed to provide the Marshal with
22 accurate and sufficient information to effect service of the summons and complaint.
23 Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994). The Court previously
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25 serve Defendant Chin, (Order Dismiss. at 3:11-19), that nothing in Plaintiff’s response to
26 the order to show cause suggested Plaintiff could provide any further information
27 relevant to effectuating service upon Defendant Chin or naming the Doe Defendant (Id.),
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1 serving Defendant Chin. (Id.) Additionally, the Court previously denied Plaintiff’s request,
2 construed as a motion for reconsideration, to proceed against previously dismissed
3 Defendant, Kern Medical Center. (Id. at 3:20-4:19.)
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Plaintiff provides no basis for granting a motion for reconsideration. His

5 December 5th filing states only that he has new evidence that Dr. Chin works at Kern
6 Medical Center. Even if he believes that evidence to be accurate, it provides no
7 information that would enable service on Dr. Chin at Kern Medical Center, an institution
8 at which the U.S. Marshal has been unable to locate and serve Dr. Chin. Plaintiff cites to
9 no error, newly discovered evidence, or other grounds supporting reconsideration.
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Plaintiff’s application to proceed in forma pauperis also is denied. Plaintiff was

11 previously granted in forma pauperis status in this action (Order Grant IFP, ECF No. 15),
12 and his instant application is moot. He has no underlying action in which to seek in
13 forma pauperis status. 28 U.S.C. § 1915.
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CONCLUSIONS AND ORDER

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Plaintiff has not met the burden imposed upon a party moving for reconsideration.

16 Marlyn Nutraceuticals, Inc., 571 F.3d at 880. He has not shown clear error or other
17 meritorious grounds for relief from the July 23, 2012 order dismissing action and
18 judgment thereon. His application for in forma pauperis status is moot.
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Accordingly, for the foregoing reasons, it is hereby ordered that:

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Plaintiff’s purported complaint filed December 5, 2012, construed as a

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request for reconsideration of the Court’s July 23, 2012 order dismissing

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action without prejudice and the judgment entered thereon (ECF No. 45) is

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DENIED, and

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2.

Plaintiff’s application to proceed in forma pauperis (ECF No. 46) is
DENIED.

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10 IT IS SO ORDERED.
11 Dated:
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December 19, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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