Love v. Yates et al

Filing 40

ORDER denying 39 Motion for Reconsideration signed by Magistrate Judge Barbara A. McAuliffe on 3/22/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARL R. LOVE,

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CASE NO. 1:10-cv-02304-BAM PC
Plaintiff,

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OR DER DENYING
RECONSIDERATION

MOTION

FOR

v.
(ECF No. 39)

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JAMES A YATES, et al.,

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Defendants.
/

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Plaintiff Carl R. Love (“Plaintiff”) 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 was filed on December 10, 2010.

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On June 24, 2011, Plaintiff’s motion to amend his complaint was denied as unnecessary. Plaintiff

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was informed that his amended complaint must state what each named defendant did that led to the

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deprivation of his constitutional or other federal rights, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49

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(2009).

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responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted

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as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative

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level . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citations omitted). (ECF

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No. 20.) On July 5, 2011, Plaintiff’s second motion to amend was denied as unnecessary and he was

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again provided the screening standard. (ECF No. 22.) On February 14, 2012, Plaintiff’s first

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amended complaint, filed July 11, 2011, was dismissed with leave to amend for failure to state a

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claim. (ECF No. 36.) Plaintiff filed a second amended complaint on February 24, 2012. (ECF No.

“The inquiry into causation must be individualized and focus on the duties and

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37.) On March 6, 2012, the second amended complaint was screened and an order issued dismissing

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certain claims and defendants for failure to state a claim. (ECF No. 38.) On March 21, 2012,

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Plaintiff filed a motion for reconsideration. (ECF No. 39.)

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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 moves for reconsideration of the dismissal of defendants, with prejudice, setting

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forth additional facts that were not included in his second amended complaint. The facts alleged in

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the motion for reconsideration were within Plaintiff’s knowledge at the time that he filed his second

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amended complaint and could have been raised in the second amended complaint. Marlyn

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Nutraceuticals, Inc., 571 F.3d at 880. Plaintiff’s motion for reconsideration is devoid of any ground

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entitling Plaintiff to reconsideration of the Court’s order and is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
10c20k

March 22, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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