Abercrombie v. Corcoran State Prison et al

Filing 37

ORDER Denying 36 Motion for Reconsideration; ORDER Denying 36 Motion for Stay and Motion for Leave to Amend as Moot; ORDER Denying Request for Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 9/2/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ABERCROMBIE,

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Plaintiff,

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1:11-cv-00048-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION

vs.
DR. KAUT, et al.,

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Defendants.

ORDER DENYING MOTION FOR STAY
AND MOTION FOR LEAVE TO AMEND AS
MOOT

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ORDER DENYING REQUEST FOR
CERTIFICATE OF APPEALABILITY

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(Doc. 36.)

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I.

RELEVANT PROCEDURAL HISTORY
Richard Abercrombie (APlaintiff@), a state prisoner proceeding pro se, filed this civil

rights action pursuant to 42 U.S.C. ' 1983 on January 11, 2011. (Doc. 1.)

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On August 11, 2014, the undersigned dismissed the sole defendant, Dr. Kaut, from this

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action, based on Plaintiff’s failure to effect service under Rule 4 of the Federal Rules of Civil

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Procedure, dismissing this action in its entirety. (Doc. 34.) On August 27, 2014, Plaintiff filed

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a motion for reconsideration of the dismissal order, a motion for leave to amend the complaint,

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motion for stay of the proceedings, and a request for a certificate of appealability. (Doc. 36.)
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II.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .”

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exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation omitted). The moving party “must demonstrate both injury and circumstances beyond

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his control . . . .”

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reconsideration of an order, Local Rule 230(k) requires Plaintiff to 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 such

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prior motion, or what other grounds exist for the motion.”

Id. (internal quotation marks and citation omitted).

In seeking

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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, committed

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clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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

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

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. Therefore, the motion for reconsideration shall be denied.

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III.

MOTION FOR STAY, MOTION FOR LEAVE TO AMEND
In light of the court’s ruling herein on Plaintiff’s motion for reconsideration, the motion

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for stay and motion for leave to amend shall be denied as moot.

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IV.

REQUEST FOR CERTIFICATE OF APPEALABILITY

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Rule 22 of the Federal Rules of Appellate Procedure requires that an applicant who files

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a notice of appeal in a habeas proceeding must obtain a certificate of appealability under 28

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U.S.C. ' 2253(c), or a statement why a certificate should not issue, from the district judge who

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rendered judgment in the action. Fed. R. App. P. 22(b) (emphasis added). Plaintiff requests a

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certificate of appealability. However, because Plaintiff=s case is a civil rights action under 42

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U.S.C. ' 1983 and not a habeas proceeding, Rule 22 is not applicable. Therefore, Plaintiff=s

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motion for a certificate of appealability shall be denied.

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed on August 27, 2014, is DENIED;

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2.

Plaintiff’s motions for stay and for leave to amend are DENIED as moot; and

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3.

Plaintiff’s request for a certificate of appealability, filed on August 27, 2014, is

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DENIED.

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IT IS SO ORDERED.
Dated:

September 2, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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