Frazier v. Akano et al

Filing 28

ORDER DENYING Plaintiff's Motions for Reconsideration of Dismissal of Action 26 , 27 CASE TO REMAIN CLOSED, signed by District Judge Lawrence J. O'Neill on 10/25/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RODNEI FRAZIER,

Case No. 1:10-cv-01656-LJO-MJS (PC)

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Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTIONS FOR RECONSIDERATION OF
DISMISSAL OF ACTION

v.
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(ECF No. 26 & 27)
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S. LOPEZ, et al.,
CASE TO REMAIN CLOSED

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Defendants.
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Plaintiff Rodnei Frazier is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action filed on September 3, 2010 pursuant to 42 U.S.C. § 1983.

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On July 29, 2013, the Magistrate Judge assigned to this matter issued findings and

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recommendations that the action be dismissed with prejudice for failure to state a claim

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with dismissal to count as a strike pursuant to 28 U.S.C. § 1915(g). (ECF No. 18.) Any

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objection to the findings and recommendations was due by September 23, 2013. (ECF No.

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20.) The September 23, 2013 deadline passed without Plaintiff filing objections or seeking

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extension of time to do so. On September 27, 2013, the Court adopted in full the findings

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and recommendations and judgment of dismissal was entered thereon. (ECF Nos. 21 &

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22.)

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On September 30, 2013, Plaintiff filed objections to the findings and
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recommendations. (ECF No. 23.) The Court vacated the order and judgment of dismissal,

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considered Plaintiff’s objections, and on October 7, 2013 adopted in full the July 29, 2013

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findings and recommendations and judgment of dismissal was entered thereon. (ECF Nos.

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24 & 25.)
Before the Court are Plaintiff’s motions for reconsideration of dismissal of the action.

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(ECF No. 26 & 27.) Plaintiff argues his objections, that the Magistrate erred in findings his

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claims non-cognizable. (Id.)

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I.

STANDARD FOR RECONSIDERATION
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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justifies relief. Rule 60(b)(6) is to be used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed

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to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the

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time of the prior motion.”
“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district 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). It is

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not enough to merely disagree with the Court’s decision or simply restate that already

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considered by the court. United States v. Westlands Water Dist., 134 F.Supp.2d 1111,

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1131 (E.D. Cal. 2001).

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II.

NO BASIS FOR RECONSIDERATION

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The Court, in its October 7, 2013 dismissal of the action, considered Plaintiff’s

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objections and found them not to raise an issue of law or fact under the findings and

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recommendations. (ECF No. 24.) The instant motions appear to re-argue the objections,

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that Defendants ignored their medical and professional duty and a chief medical officer
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“teletype agreement” regarding Plaintiff’s medical evaluation and treatment at Kern Valley

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State Prison and retaliated against him through treatment, transfer and the grievance

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process, and that inconsistencies exist between the pleading and the findings and

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recommendations. These objections and arguments were found deficient for reasons

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stated in the Court’s October 7, 2013 dismissal. Plaintiff does not provide any newly

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discovered evidence, or point to any clear error, or suggest there was an intervening

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change in the controlling law that would require the Court to reconsider its October 7, 2013

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dismissal.
Reconsideration is not a vehicle by which to obtain a second bite at the apple; it is

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reserved for extraordinary circumstances. Westlands Water Dist., 134 F.Supp.2d at 1131;

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see also In re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989). Plaintiff was

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previously notified of the deficiencies in his claims and given leave to amend. (ECF No. 12.)

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Thus, this was not a situation in which Plaintiff was deprived of notice and an opportunity to

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amend. Plaintiff's dissatisfaction with the Court's decision is not grounds for

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reconsideration.

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III.

ORDER

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Accordingly, for the reasons stated, it is HEREBY ORDERED that:

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and

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Plaintiff’s motions for reconsideration (ECF No. 26 & 27) are hereby DENIED,

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This case shall remain closed.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

October 25, 2013

UNITED STATES DISTRICT JUDGE
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DEAC _Signature- END:

b9ed48bb

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