Marsh v. Brown et al

Filing 42

ORDER GRANTING 41 MOTION FOR RECONSIDERATION; ORDER VACATING 39 ORDER DISMISSING CASE; ORDER FOR CLERK TO REOPEN CASE AND RE-SERVE 36 COURTS ORDER OF APRIL 15, 2013 UPON PLAINTIFF; ORDER GRANTING PLAINTIFF THIRTY DAYS TO COMPLETE AND SUBMIT SERVICE DOCUMENTS; ORDER REFERRING CASE TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS signed by District Judge Lawrence J. O'Neill on 8/23/2013. (Filing Deadline: 9/30/2013). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE L. MARSH,

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Plaintiff,

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vs.

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JERRY BROWN, et al.,

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Defendants.

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ORDER REFERRING CASE TO
MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS

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ORDER VACATING ORDER
DISMISSING CASE
(Doc. 39.)

ORDER GRANTING PLAINTIFF
THIRTY DAYS TO COMPLETE AND
SUBMIT SERVICE DOCUMENTS

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ORDER GRANTING MOTION FOR
RECONSIDERATION
(Doc. 41.)

ORDER FOR CLERK TO REOPEN CASE
AND RE-SERVE COURT’S ORDER OF
APRIL 15, 2013 UPON PLAINTIFF
(Doc. 36.)

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1:10-cv-02353-LJO-GSA-PC

I.

BACKGROUND
Lawrence L. Marsh ("Plaintiff") is a former state prisoner proceeding pro se in this civil

rights action pursuant to 42 U.S.C. § 1983.

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On June 7, 2013, the Magistrate Judge entered findings and recommendations,

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recommending that this case be dismissed for Plaintiff’s failure to comply with the court’s

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order of April 15, 2013, which required him to complete and return documents to initiate
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service of process in this action. (Doc. 37.) Plaintiff was granted thirty days in which to file

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objections to the findings and recommendations. Plaintiff failed to file timely objections, and

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on July 19, 2013, the undersigned adopted the findings and recommendations, dismissing this

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case without prejudice. (Doc. 39.)

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On August 8, 2013, Plaintiff filed a motion for an extension of time to file objections to

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the findings and recommendations, and a request for copies from his case file. (Doc. 41.)

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II.

PLAINTIFF’S MOTION

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Plaintiff seeks leave to file late objections to the Magistrate’s findings and

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recommendations of June 7, 2013. Plaintiff asserts that he was unable to file timely objections

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because he did not receive the findings and recommendations, or the court’s order requiring

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him to submit service documents, until months after they were issued, because prison officials

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at the California Substance Abuse Treatment Facility (SATF) denied him his legal mail

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beginning in April 2013. Plaintiff asserts that as soon as he was released from prison, he filed a

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notice of change of address with the court and subsequently received the court’s order

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dismissing the case. Plaintiff requests leave to continue with his claims against defendants in

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this case.

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Discussion

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The court construes Plaintiff’s motion as a motion for reconsideration of the order

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dismissing this case.

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Motion for Reconsideration

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The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42

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F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th

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Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v.

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Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460

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(9th Cir. 1983) (en banc). Motions for reconsideration are disfavored, however, and are not the

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place for parties to make new arguments not raised in their original briefs. Zimmerman v. City

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of Oakland, 255 F.3d 734, 740 (9th Cir. 2001); Northwest Acceptance Corp. v. Lynnwood

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Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Nor is reconsideration to be used to ask the
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court to rethink what it has already thought. Walker v. Giurbino, 2008 WL 1767040, *2

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(E.D.Cal. 2008). To succeed, a party must set forth facts or law of a strongly convincing nature

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to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of

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Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on

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other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local

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Rule 230(j) requires a party to show the Anew or different facts or circumstances claimed to

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

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exist for the motion.@ L.R. 230(j).

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Plaintiff asserts that he was unable to defend against the dismissal of his case because

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he was prevented from receiving his legal mail at SATF and was unable to respond to the

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court’s orders. A review of the docket in this case shows that Plaintiff was served the court’s

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orders of April 15, 2013 and June 7, 2013 (Docs. 36, 37) at his address of record at SATF, but

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Plaintiff failed to respond (Court Record). On June 28, 2013, Plaintiff filed a notice of change

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of address to a street address in San Diego, giving no indication that he was aware of the

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court’s orders. (Doc. 38.) On July 19, 2013, the court issued its order dismissing this action,

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based on Plaintiff’s failure to respond to the court’s orders. (Doc. 39.) Plaintiff’s explanation,

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together with the evidence on the court’s record, are sufficient to induce the court to reconsider

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its order dismissing this case. Therefore, the order dismissing this case shall be vacated, the

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case shall be reopened, and Plaintiff shall be granted another opportunity to submit documents

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to initiate service of process in this action.

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III.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff's motion filed on August 21, 2013, which the court construes as a
motion for reconsideration, is GRANTED;

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2.

The court’s order dismissing this case, entered on July 19, 2013, is VACATED;

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3.

The Clerk is directed to:

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(1)

REOPEN this case, and

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(2)

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Concurrently with this order, RE-SERVE the court’s order of April 15,
2013 upon Plaintiff (Doc. 36);

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Plaintiff is GRANTED thirty days from the date of service of this order in which

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to comply with the court’s April 15, 2013 order requiring him to complete and

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submit service documents to initiate service in this case;

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This case is referred back to the Magistrate Judge for further proceedings; and

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Plaintiff’s failure to comply with this order shall result in the dismissal of this

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action.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

August 23, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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