Sutherland v. Yates et al

Filing 92

ORDER Denying Motion For Reconsideration (Doc. 91 ), signed by District Judge Lawrence J. O'Neill on 1/31/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM SUTHERLAND,

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Plaintiff,

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vs.

1:09-cv-02152-LJO-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 91.)

JAMES A. YATES, et al.,

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Defendants.

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I.

BACKGROUND

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Plaintiff filed the Complaint commencing this action on December 11, 2009. (Doc. 1.)

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This action now proceeds on the First Amended Complaint, filed by Plaintiff on December 6,

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2010, against defendants C/O A. Fernando and C/O M. Jericoff for use of excessive force;

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against defendant Warden James Yates for failure to protect Plaintiff; and on Plaintiff's related

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state claims.1 (Doc. 15.)

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On January 30, 2013, Plaintiff filed a motion for reconsideration by the District Judge

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of the Magistrate Judge’s order of January 7, 2014, which denied Plaintiff’s Rule 37(b) motion

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as untimely. (Doc. 91.)

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II.

MOTION FOR RECONSIDERATION BY DISTRICT JUDGE

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A.

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Local Rule 303 provides that "[a] party seeking reconsideration of the Magistrate

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Judge's ruling shall file a request for reconsideration by a Judge . . . specifically designat[ing]

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the ruling, or party thereof, objected to and the basis for that objection. This request shall be

Legal Standard

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All other claims and defendants were dismissed from this action by the court on June 16, 2011. (Doc. 20.)
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captioned 'Request for Reconsideration by the District Court of Magistrate Judge's Ruling.'"

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Local Rule 303(c). "The standard that the assigned Judge shall use in all such requests is the

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'clearly erroneous or contrary to law' standard set forth in 28 U.S.C. ' 636(b)(1)(A)." Local

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Rule 303(f).
Plaintiff’s Motion for Reconsideration

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B.

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Plaintiff argues that his Rule 37(b) motion should not have been denied as untimely by

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the Magistrate Judge, because Plaintiff was misled by information acquired through computer

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research about when his thirty-day deadline for filing the Rule 37(b) motion was due to expire.

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Plaintiff claims he understood that thirty days “after service” meant thirty days after the date

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Plaintiff received the order being served, rather than thirty days after the date the court served

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the order.

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special” as an inmate and his mail is often delivered to him late. (Motion, Doc. 91 at 5:19-27.)

Plaintiff also argues that he should be afforded leniency because his “situation is

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C.

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The Court has reviewed this case, including Plaintiff’s objections, and does not find the

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Magistrate Judge’s order issued on January 7, 2014, to be clearly erroneous or contrary to law

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under 28 U.S.C. § 636(b)(1)(A). Therefore, Plaintiff’s motion for reconsideration shall be

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denied.

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III.

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Discussion

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

reconsideration, filed on January 30, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

January 31, 2014

UNITED STATES DISTRICT JUDGE

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