Alonso-Prieto v. Pierce, et al.
Filing
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ORDER Regarding 82 Response to Order to Show Cause, Pretrial Statement, and Notice of Appeal, signed by Magistrate Judge Michael J. Seng on 12/15/14. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RAUL ERNEST ALONSO-PRIETO,
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Plaintiff,
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v.
B. PIERCE,
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CASE NO. 1:11-cv-0024-MJS
ORDER REGARDING RESPONSE TO
ORDER TO SHOW CAUSE, PRETRIAL
STATEMENT, AND NOTICE OF APPEAL
(ECF No. 82)
Defendant.
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I.
PROCEDURAL HISTORY
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Plaintiff is a former federal prisoner proceeding pro se and in forma pauperis in
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this civil rights action brought pursuant to Bivens v. Six Unknown Named Agents of
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Federal Bureau of Narcotics, 403 U.S. 388. (ECF Nos. 4 & 17.) The action proceeded
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on Plaintiff’s second amended complaint (ECF No. 17) against Defendant Pierce for
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excessive force in violation of the Eighth amendment. (ECF Nos. 21 & 25.)
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The Courts’ second scheduling order required Plaintiff to file and serve his pretrial
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statement on or before November 3, 2014. (ECF No. 60.) The deadline passed without
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Plaintiff filing the statement or seeking an extension of time to do so. On November 17,
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2014, the Court ordered Plaintiff to file a pretrial statement or show cause why the action
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should not be dismissed with prejudice in light of Plaintiff’s failure to obey the Court’s
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second scheduling order. (ECF No. 73.) In that Order, the Court warned that if dismissal
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resulted, dismissal without prejudice would not be appropriate.
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The deadline for Plaintiff to show cause passed without any response from
Plaintiff. The action was dismissed on December 10, 2014. (ECF No. 80.)
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On December 12, 2014, Plaintiff filed a response to the order to show cause, a
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pretrial statement, and a notice of appeal. (ECF No. 82.) The Court construes Plaintiff’s
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response to the order to show cause and his pretrial statement as a motion for
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reconsideration of the Court’s December 10, 2014 dismissal order.
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II.
LEGAL STANDARD
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“A motion for reconsideration should not be granted, absent highly unusual
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circumstances, unless the district court is presented with newly discovered evidence,
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committed clear error, or if there is an intervening change in the controlling law.” Marlyn
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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
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“A motion for reconsideration may not be used to raise arguments or present evidence
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for the first time when they could reasonably have been raised in earlier litigation.” Id.
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Moreover, “recapitulation of the cases and arguments considered by the court before
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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands
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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony
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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)
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requires that a party seeking reconsideration show that “new or different facts or
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circumstances are claimed to exist which did not exist or were not shown upon such
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prior motion, or what other grounds exist for the motion . . . .”
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III.
ANALYSIS
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In his response to the order to show cause, Plaintiff states his continuing
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disagreement with the Court’s rulings on discovery matters in this case. (ECF No. 82 at
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1-2.) Discovery issues were addressed in the Court’s order denying Plaintiff’s motion to
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compel, for reconsideration, recusal, and transfer of venue. (ECF No. 71.) They also
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were addressed in the Court’s order denying Plaintiff’s motion for clarification. (ECF No.
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79.) Plaintiff does not provide any new arguments that would warrant reconsideration of
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the Court’s dismissal order. See Westlands Water Dist., 134 F. Supp. 2d at 1131.
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Plaintiff’s “informal pretrial statement” is deficient in several respects. It briefly
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summarizes the facts Plaintiff intends to prove. It goes on to discuss documentary
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evidence Plaintiff would like to present, but which, according to him, has been destroyed.
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It then lists intended witnesses, to include four medical personnel who appear to be
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associated with the prison, one inmate witness, and 29 unnamed inmate witnesses
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whose names Defendants allegedly refused to release.
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The Court’s second scheduling order (ECF No. 60) advised Plaintiff that his
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pretrial statement would have to comply with Local Rule 281. A copy of the Rule was
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sent to Plaintiff. Plaintiff’s pretrial statement does not comply; it does not address each of
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the matters specified by that Rule.
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The order also informed Plaintiff, at length, of the procedures required to obtain
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the attendance of incarcerated and unincarcerated witnesses. Plaintiff did not comply
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with these procedures. He did not file a motion for attendance of incarcerated witnesses
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or a declaration indicating that his incarcerated witness was willing to testify voluntarily.
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He also did not indicate whether his unincarcerated medical witnesses were willing to
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testify voluntarily; he did not, as an alternative, file a motion to ensure their attendance or
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pay the required witness fees and travel expenses.
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In light of these deficiencies, Plaintiff’s pretrial statement does not provide a basis
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for reconsideration of the Court’s dismissal order. See Marlyn Nutraceuticals, Inc., 571
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F.3d at 880.
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IV.
ORDER
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Based on the foregoing, Plaintiff’s response to the order to show cause and
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pretrial statement (ECF No. 82), which the Court construes as a motion for
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reconsideration, is HEREBY DENIED. The case remains dismissed.
The Clerk of Court is directed to process Plaintiff’s notice of appeal. (ECF No. 82.)
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IT IS SO ORDERED.
Dated:
December 15, 2014
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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