Rangel v. Tilton et al
Filing
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ORDER Denying Plaintiff's 21 Objection, Construed as a Motion for Reconsideration, signed by Magistrate Judge Barbara A. McAuliffe on 2/13/12. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LEONARDO JOSEPH RANGEL,
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CASE NO. 1:10-cv–01790-BAM PC
Plaintiff,
ORDER DENYING PLAINTIFF’S
OBJECTION, CONSTRUED AS A MOTION
FOR RECONSIDERATION
v.
JAMES TILTON, et al.,
(ECF No. 21)
Defendants.
/
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Plaintiff Leonardo Joseph Rangel is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first
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amended complaint, filed January 9, 2012, against Defendants D. Latraille and J. Tabor for excessive
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force in violation of the Eighth Amendment, retaliation in violation of the First Amendment, and
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assault and battery under state law. On January 18, 2012, an order issued dismissing certain claims
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and defendants from this action, with prejudice, for Plaintiff’s failure to state a cognizable claim
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against them. (ECF No. 17.) On February 10, 2012, Plaintiff filed objections to the order dismissing
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certain claims and defendants. (ECF No. 21.) An objection to the Court’s order is not a recognized
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response and Plaintiff’s objection shall be construed as a motion for reconsideration.
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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms,
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the court may relieve a party . . .from a final judgment, order, or proceeding for the following
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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence .
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. . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;
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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where none of these
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factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th
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Cir. 1991).
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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order
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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to
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prevent 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) (internal quotations marks and citation
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omitted). The moving party “must demonstrate both injury and circumstances beyond his control
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. . . .” Id. (internal quotation marks and citation omitted). 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 to exist
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which did not exist or were not shown upon such prior motion, or what other grounds exist for the
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motion,” and “why the facts or circumstances were not shown at the time of the prior motion.”
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“A motion for reconsideration should not be granted, absent highly unusual circumstances,
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unless the district court is presented with newly discovered evidence, committed clear error, or if
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there is an intervening change in the controlling law,” and it “may not be used to raise arguments or
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present evidence for the first time when they could reasonably have been raised earlier in the
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litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
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2009) (internal quotations marks and citations omitted) (emphasis in original).
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Plaintiff requests that the court allow him to amend his compliant to add Defendants Adams,
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Leon, and Hubach because the video tape of the incident will show that Defendant Hubach gave the
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order to continue using pepper spray and Defendant Leon was present. Plaintiff does not set forth
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newly discovered evidence that was not available to Plaintiff at the time he filed his complaint.
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Plaintiff sets forth factual allegations that were within his knowledge at the time and could have
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reasonably been alleged in his complaint.
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Accordingly, Plaintiff’s motion for reconsideration is HEREBY DENIED.
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Marlyn Nutraceuticals, Inc., 571 F.3d at 880.
IT IS SO ORDERED.
Dated:
10c20k
February 13, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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