George K.Colbert v. Carrasco et al

Filing 16

ORDER DENYING 15 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 5/21/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:11-cv-00010-AWI-GSA-PC

GEORGE K. COLBERT,

ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 15.)

vs.
M. CARRASCO, et al.,

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Defendants.

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I.

BACKGROUND

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George K. Colbert (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint

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commencing this action on January 4, 2011. (Doc. 1.) On May 3, 2013, the Court issued an

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order dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 14.) On

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May 17, 2013, Plaintiff filed objections to the Court’s order. (Doc. 15.) The Court construes

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Plaintiff’s objections as a motion for reconsideration of the Court’s order.

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II.

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). To succeed, a party must set forth facts or law of a strongly

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convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist.

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

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

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

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to 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 argues that he should be able to proceed on the claims in his Complaint

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because he has clearly alleged viable claims for retaliation. However, Plaintiff has not set forth

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facts or law of a strongly convincing nature to induce the Court to reverse its prior decision.

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Plaintiff’s remedy at this stage of the proceedings is to file an amended complaint setting out

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his claims using the guidance set forth in the May 3, 2013 order to cure the deficiencies found

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by the Court. Plaintiff is advised that if he does not file an amended complaint within the

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Court’s deadline, the Court shall recommend that this action be dismissed in its entirety, with

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prejudice, for failure to state a claim. Accordingly, Plaintiff’s motion for reconsideration shall

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be denied.

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III.

Based on the foregoing, IT IS HEREBY ORDERED THAT Plaintiff’s motion for

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CONCLUSION

reconsideration, filed on May 17, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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May 21, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Sig nature-END:

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