Sierra v. United States District Court

Filing 41

ORDER Denying Plaintiff's 32 33 34 Post-Judgment Motions signed by Magistrate Judge Sheila K. Oberto on 09/27/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KENNETH SIERRA,

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CASE NO. 1:10-cv-01019-SKO PC
Plaintiff,

ORDER DENYING PLAINTIFF’S POSTJUDGMENT MOTIONS

v.
(Docs. 32-34)

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UNITED STATES DISTRICT COURT,

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Defendant.
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Plaintiff Kenneth Alan Sierra, a state prisoner proceeding pro se, filed this civil action on

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June 7, 2010. The action was dismissed with prejudice on February 9, 2011, and Plaintiff’s appeal

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of the dismissal was dismissed by the Ninth Circuit Court of Appeals on July 15, 2011. Pending

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before the Court are Plaintiff’s motions seeking (1) assignment for appellate review and

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reconsideration, (2) an extension of time to seek reconsideration, and (3) leave to amend, filed on

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March 14, 2011.1

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This action was dismissed, with prejudice, for failure to state a claim upon which relief may

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be granted because the complaint set forth no coherent causes of action. The Court further found

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that if liberally construed to state causes of action not considered by the Court, the claims would be

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barred by sovereign immunity, FDIC v. Meyer, 510 U.S. 471, 486 (1994); Cato v. United States, 70

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F.3d 1103, 1110 (9th Cir. 1995), and/or judicial immunity, Cleavinger v. Saxner, 474 U.S. 193, 199-

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In light of the dismissal of Plaintiff’s appeal, the Court has regained jurisdiction to resolve Plaintiff’s
pending motions. Standard Oil Co. of California v. United States, 429 U.S. 17, 18-9, 97 S.Ct. 31 (1976); Gould v.
Mutual Life Insurance Co. of New York, 790 F.2d 769, 772-73 (9th Cir. 1986).

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200, 106 S.Ct. 496 (1985); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099 (1978); Crowe

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v. County of San Diego, 608 F.3d 406, 430 (9th Cir. 2010); Simmons v. Sacramento County

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Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003).

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Plaintiff’s motion for appellate review is moot in that his appeal was processed and resolved

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by the Ninth Circuit. Plaintiff’s motion for reconsideration by a different judge is denied. There are

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no grounds for recusal of the undersigned and assignment of this action to another judge. 28 U.S.C.

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§§ 455(a), 455(b)(1); Litkey v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994); United

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States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010).

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Plaintiff’s motion for an extension of time to seek reconsideration is denied. A motion for

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reconsideration under Rule 60(b) must be brought within a reasonable time and if relief is sought

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under Rule 60(b)(1), (2), or (3), the motion must be brought within one year. Fed. R. Civ. P. 60(b).

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Plaintiff’s motion is premature in light of the foregoing standard, and in addition, the motion sets

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forth no good cause. Fed. R. Civ. P. 6(b).

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Finally, Plaintiff’s motion for leave to file an amended complaint, treated as a Rule 60(b)

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motion given that the action is closed, is denied. Plaintiff’s disagreement with the ruling is not

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grounds for reconsideration, Fed. R. Civ. P. 60(b)(6); Local Rule 230(j); Marlyn Nutraceuticals, Inc.

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v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009); Harvest v. Castro, 531 F.3d 737,

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749 (9th Cir. 2008), and there exist no grounds warranting leave to amend given the nature of

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Plaintiff’s claims and the party named, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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For the foregoing reasons, Plaintiff’s motions are HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:
ie14hj

September 27, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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