Davis v. Kelso et al

Filing 78

ORDER DENYING Plaintiff's 76 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 12/11/2014. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLES T. DAVIS,

12
13
14
15

Plaintiff,
v.
CLARK J. KELSO, et al.,
Defendants.

16
17
18
19

)
)
)
)
)
)
)
)
)
)

Case No.: 1:10-cv-01184-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
[ECF No. 76]

Plaintiff Charles T. Davis is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On November 13, 2014, the Magistrate Judge’s Findings and Recommendations, filed October

20

3, 2014, was adopted in full, and it was ordered that this action proceed against Defendants Cate and

21

Yates for deliberate indifference and all other claims and defendants were dismissed from the action

22

for failure to state a cognizable claim for relief. (ECF No. 74.)

23

Now pending before the Court is Plaintiff’s motion for reconsideration, filed November 26,

24

2014. The Court construes Plaintiff’s motion as a request for reconsideration pursuant to Rule 60 of

25

the Federal Rules of Civil Procedure.

26

Pursuant to Federal Rule of Civil Procedure 60(b)(6), referred to as the catch-all provision, the

27

Court may, upon motion, relieve a party from a final order or judgment. As the moving party, Plaintiff

28

Amust demonstrate both injury and circumstances beyond his control that prevented him from
1

1

proceeding with the action in a proper fashion.@ Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

2

(internal quotations and citation omitted). The ARule is to be used sparingly as an equitable remedy to

3

prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a

4

party from taking timely action to prevent or correct an erroneous judgment.@ Id. (internal quotations

5

and citation omitted).

6

Plaintiff disagrees with the Court’s decision and seeks reconsideration of the order dismissing

7

defendants Kelso and Igbinosa and Plaintiff’s state law claim. In screening Plaintiff’s second

8

amended complaint, the Court carefully considered Plaintiff’s allegations, construed the allegations in

9

light of Plaintiff’s pro se status, and explained in a detailed order why the complaint failed to state

10

certain cognizable claims. Plaintiff provides no basis to modify the Court’s November 13, 2014,

11

order, and Plaintiff’s disagreement with the Court’s decision is not grounds for reconsideration.

12

Accordingly, Plaintiff’s motion for reconsideration must be DENIED.

13
14
15
16

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

December 11, 2014

UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
2