Davis v. United Postal Services

Filing 30

ORDER Denying Pliantiff's 29 Objections to Court's Order Dismissing Plaintiff's Second Amended Complaint, signed by Magistrate Judge Michael J. Seng on 11/28/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS L. DAVIS,

CASE NO.

1:10-cv-1457-MJS (PC)

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Plaintiff,
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ORDER DENYING PLAINTIFF’S
OBJECTIONS TO COURT’S ORDER
DISMISSING PLAINTIFF’S SECOND
AMENDED COMPLAINT

v.

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RONALD NUCCI, et al.,
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(ECF No. 29)

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Defendants.
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/
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Plaintiff Thomas L. Davis (“Plaintiff”) is a federal prisoner proceeding pro se and in

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forma pauperis in this civil rights action initiated pursuant to Bivens v. Six Unknown Named

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Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 .

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After having found no cognizable claim in Plaintiff’s initial and First Amended

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Complaints, the Court screened Plaintiff’s Second Amended Complaint and, on August 10,

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2011, found that it too failed to state a cognizable federal claim and dismissed it without

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prejudice to it being refiled in state court. (ECF No. 27.)

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On August 22, 2011, Plaintiff filed an Objection to the Court’s August 10, 2011

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Order dismissing Plaintiff’s Second Amended Complaint. (ECF No. 29.) Plaintiff does not

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identify the procedural basis for his Objection. Since it appears he is seeking relief from

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the Court’s Order dismissing his Second Amended Complaint, the Court analyzes it in the

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The action was redesignated as a civil action on August 23, 2010. (ECF No. 11.)

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context of a motion to reconsider, vacate, alter or amend the order of dismissal.
Plaintiff argues that the Court’s dismissal was inappropriate because the Court was

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unaware of eight objections which he lists in the Objection.

The eight objections

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collectively direct the Court’s attention to the following: UPS is not a federal corporation

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or agency; Defendant Nucci misidentified and mis-appraised Plaintiff’s property; Ali v

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Federal bureau of Prisons, 552 U.S. 214 (2008), cited by the court in its August 10, 2011

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Order, does not prevent Plaintiff’s recovery; Plaintiff’s damages were miscalculated by the

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Court; and the Court should require all Defendants to answer before judging Plaintiff’s

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Second Amended Complaint.

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The essence of Plaintiff’s Objection is that he disagrees with the Court’s Screening

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Order. His stated grounds do not, however, identify any that the Court failed to consider

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in its August 10, 2011 Order, nor do they change the facts or allegations in any way.

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Federal Rule of Civil Procedure 60 enumerates grounds, including mistake,

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inadvertence, newly discovered evidence, “or any other reason that justifies relief”, for relief

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from an order or judgment. The “any other reason” ground in Rule 60(b)(6) “is to be used

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sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only [in]

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extraordinary circumstances...” Harvest v. Castro, 531 F. 3d 737, 749 (9th Cir. 2008)

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internal quotation marks and citation omitted). Moreover, Local Rule 230 (k) requires a

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Plaintiff seeking reconsideration to show “what new or different facts or circumstances are

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claimed to exist which did not exist or were not shown upon such prior motions, or what

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other grounds exist for the motion.” “A motion for reconsideration should not be granted,

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absent highly unusual circumstances, unless the . . . court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,

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880 (9th Cir. 2009) (internal quotations marks and citations omitted), and “[a] party seeking

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reconsideration must show more than a disagreement with the Court’s decision, and

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recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision, U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
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Plaintiff has failed to establish any permissible rationale under Federal Rule of Civil

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Procedure 60 that would entitle him to relief from the Court’s August 10, 2011 Order. He

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has not identified any mistake committed by the Court, newly discovered evidence, or

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grounds that would justify the Court’s reinstatement of his Second Amended Complaint.

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None of Plaintiff’s enumerated objections cause the Court to withdraw its reliance on the

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reasoning in Daley v. United States, No. CV 08-0261-TUC-CKJ, 2009 U.S. Dist. LEXIS

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33798, 2009 WL 1047930, at *4 (D. Ariz. April 20, 2009): Plaintiff’s purported action

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against the United States and against Defendant Nucci is barred by the fact that the

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property lost was lost during the course of detention by law enforcement.

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Similarly, Plaintiff’s additional characterization and valuation of the lost property

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does not alter the conclusion that Plaintiff’s damages total nowhere near the $75,000

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jurisdictional minimum of this Court.

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Thus, regardless of the alleged wrongfulness of the alleged acts and the

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significance of the loss to Plaintiff, this Court cannot provide a forum or a remedy for

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Plaintiff’s claims. He is again invited to consider the propriety of initiating an action against

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UPS in state court.

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In summary, the Court finds that Plaintiff has not shown clear error or other

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meritorious grounds for relief, and has therefore not met his burden as a party moving for

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reconsideration. Marlyn Nutraceuticals, Inc., 571 F.3d at 880. Plaintiff’s disagreement with

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the Court’s ruling is not grounds for relief from tits Order. Westlands Water Dist., 134

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F.Supp.2d at 1131.

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Accordingly, Plaintiff’s Objection is DENIED with prejudice. The Court’s Judgment
entered August 10, 2011 (ECF No. 28) stands as the final order in this case.

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IT IS SO ORDERED.

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Dated:
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November 28, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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