Johnson v. Cate et al

Filing 78

ORDER Denying Reconsideration of Order Granting Extension of Time to Oppose Motion for Summary Judgment, signed by Magistrate Judge Michael J. Seng on 9/9/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARRISON S. JOHNSON,

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

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Plaintiff,

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v.

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ORDER DENYING RECONSIDERATION
OF ORDER GRANTING EXTENSION OF
TIME TO OPPOSE MOTION FOR
SUMMARY JUDGMENT
(ECF No. 69)

CATE, et al.,

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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 (“KVSP”). On July 14,

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2014, the Court granted Defendant’s motion extending until September 16, 2014, the time

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to oppose Plaintiff’s motion for summary judgment.

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Before the Court is Plaintiff’s July 17, 2014 opposition to Defendant’s motion for

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extension of time. The Court will construe it as a motion for reconsideration of the July 14,

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2014 order.

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that
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). The motion must be brought within a

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reasonable time. Fed. R. Civ. P. 60(c)(1).
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.”
Here, Plaintiff argues that Defendant had a fair opportunity to complete discovery

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and that, given Defendant’s discovery responses, further discovery will not yield evidence

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in opposition to Plaintiff’s summary judgment motion.1 However, Plaintiff does not

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controvert the facts set forth in the Declaration of Goodwin in support of the motion for

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extension of time. Plaintiff also fails to show that the Court committed legal error in granting

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the extension of time. Fed. R. Civ. P. 6(b)(1); Fed R. Civ. P. 56(d); Ginett v. Federal

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Express Corp., 166 F.3d 1213 at 5* (6th Cir. 1998).
Accordingly, Plaintiff’s opposition to the motion for extension of time (ECF No. 69),

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construed as a motion for reconsideration, is DENIED.

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IT IS SO ORDERED.

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Dated:

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September 9, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Plaintiff’s request for judicial notice of discovery responses is denied because such responses are not
adjudicative facts susceptible of notice. See Fed. R. Evid. 201(b).

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