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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ABERCROMBIE, 12 Plaintiff, 13 14 1:11-cv-00048-GSA-PC ORDER DENYING MOTION FOR RECONSIDERATION vs. DR. KAUT, et al., 15 Defendants. ORDER DENYING MOTION FOR STAY AND MOTION FOR LEAVE TO AMEND AS MOOT 16 ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY 17 (Doc. 36.) 18 19 20 21 22 23 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.) 24 On August 11, 2014, the undersigned dismissed the sole defendant, Dr. Kaut, from this 25 action, based on Plaintiff’s failure to effect service under Rule 4 of the Federal Rules of Civil 26 Procedure, dismissing this action in its entirety. (Doc. 34.) On August 27, 2014, Plaintiff filed 27 a motion for reconsideration of the dismissal order, a motion for leave to amend the complaint, 28 motion for stay of the proceedings, and a request for a certificate of appealability. (Doc. 36.) 1 1 II. MOTION FOR RECONSIDERATION 2 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 3 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with 4 reasonable diligence, could not have been discovered in time to move for a new trial under 5 Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 6 misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies 7 relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to 8 prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” 9 exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and 10 citation omitted). The moving party “must demonstrate both injury and circumstances beyond 11 his control . . . .” 12 reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or different 13 facts or circumstances are claimed to exist which did not exist or were not shown upon such 14 prior motion, or what other grounds exist for the motion.” Id. (internal quotation marks and citation omitted). In seeking 15 “A motion for reconsideration should not be granted, absent highly unusual 16 circumstances, unless the district court is presented with newly discovered evidence, committed 17 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 18 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations 19 marks and citations omitted, and “[a] party seeking reconsideration must show more than a 20 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 21 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 22 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a 23 strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare 24 Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and 25 reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 26 Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court 27 to reverse its prior decision. Therefore, the motion for reconsideration shall be denied. 28 /// 2 1 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 2 3 for stay and motion for leave to amend shall be denied as moot. 4 IV. REQUEST FOR CERTIFICATE OF APPEALABILITY 5 Rule 22 of the Federal Rules of Appellate Procedure requires that an applicant who files 6 a notice of appeal in a habeas proceeding must obtain a certificate of appealability under 28 7 U.S.C. ' 2253(c), or a statement why a certificate should not issue, from the district judge who 8 rendered judgment in the action. Fed. R. App. P. 22(b) (emphasis added). Plaintiff requests a 9 certificate of appealability. However, because Plaintiff=s case is a civil rights action under 42 10 U.S.C. ' 1983 and not a habeas proceeding, Rule 22 is not applicable. Therefore, Plaintiff=s 11 motion for a certificate of appealability shall be denied. 12 V. CONCLUSION 13 Based on the foregoing, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s motion for reconsideration, filed on August 27, 2014, is DENIED; 15 2. Plaintiff’s motions for stay and for leave to amend are DENIED as moot; and 16 3. Plaintiff’s request for a certificate of appealability, filed on August 27, 2014, is 17 DENIED. 18 19 20 21 IT IS SO ORDERED. Dated: September 2, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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