Johnson v. Cate et al

Filing 102

ORDER DENYING Plaintiff's 98 Motion for Reconsideration, signed by Magistrate Judge Michael J. Seng on 12/3/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case NO. 1:10-cv-02348-LJO-MJS (PC)

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GARRISON S. JOHNSON,

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Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

CATE, et al.,

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(ECF NO. 98)

Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant

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to 42 U.S.C. § 1983. The action proceeds on an equal protection claim against Defendant

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Doran, Inmate Assignment Lieutenant at Kern Valley State Prison.

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On November 10, 2014, the Court denied Plaintiff’s motion to suppress and exclude

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the transcript of his July 29, 2014 deposition. On November 20, 2014, Plaintiff filed a

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motion for reconsideration of the November 10, 2014 order arguing that he is entitled to the

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transcript without cost.

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

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justifies relief.1 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). The motion must be brought within a

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reasonable time. Fed. R. Civ. P. 60(c)(1).

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Plaintiff cites Rule 59(e) as the basis for desired relief. However, Rule 60 is appropriate for reconsideration
of an interlocutory order. Fed. R. Civ. P. 60; see Bank of California, N.A. v. Arthur Anderson & Co., 709 F.2d
1174, 1176 (7th Cir. 1983) (substance controls in determining whether Rule 59 or Rule 60 applies); Bank
Leumi Trust Co., of New York v. Istim, Inc., 902 F.Supp. 46, 48 n.2 (S.D.N.Y. 1995) (Rule 59 not applicable to
review of non-final order of district court).

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Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown upon [the]

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prior motion, or what other grounds exist for the motion,” and “why the facts or

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circumstances were not shown at the time of the prior motion.”

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Plaintiff contends that he is entitled to the transcript without cost because he lacks

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the funds to pay for it. However, his motion to suppress deposition (ECF No. 87) does not

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request such relief.2 If it had, the general rule, as stated in the November 10, 2014 order,

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would apply:

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transcript. Fed. R. Civ. P. 30(f)(3); see Brant v. Principal Life and Disability Ins. Co., 195

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F.Supp.2d 1100, 1108 (N.D. Iowa 2002) (defendant not required to provide plaintiff with a

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copy of his deposition free of charge).

a party’s lack of funds alone does not entitle him to a free deposition

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Even if relief from this general rule might be justified where extenuating

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circumstances exist, such as inability to pay the fee, see e.g., Schroer v. U.S., 250 F.R.D.

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531, 537 (D. Colo. 2008), Plaintiff did not provide facts demonstrating his inability to pay for

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the transcript. Plaintiff is not proceeding in forma pauperis. (“IFP”).3 He did not provide the

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Court with the cost of the transcript and demonstrate that his trust account lacks sufficient

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funds.

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Plaintiff has not demonstrated any error of fact or law in the November 10, 2014
order.
Accordingly, Plaintiff’s motion for reconsideration (ECF No. 98) is DENIED.

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IT IS SO ORDERED.

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Dated:

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December 3, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Plaintiff’s reply brief (ECF No. 90) request a free transcript as alternative relief. (ECF No. 90 at 2.)
The November 10, 2014 order incorrectly states Plaintiff is proceeding IFP. (ECF No. 94 at 2:27-28.)
Plaintiff does not have IFP status in this action.
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