Franklin v. United States of America

Filing 46

ORDER Denying 44 Motion for Reconsideration, signed by Magistrate Judge Erica P. Grosjean on 5/2/16. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMERY L. FRANKLIN III,

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Plaintiff,

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vs.

1:11-cv-00173-EPG-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(ECF No. 44.)

UNITED STATES,

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Defendant.

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This order responds to Plaintiff Emery L. Franklin III’s February 23, 2016 letter to the

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Court. In short, both of Plaintiff’s claims have been dismissed and his case has been closed.

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The Court will not reopen it.

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I.

RELEVANT PROCEDURAL HISTORY

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Emery L. Franklin III (“Plaintiff”) is a federal prisoner proceeding pro se with this civil

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action filed pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971) and the Federal

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Tort Claims Act (FTCA). Plaintiff filed the Complaint commencing this action on January 31,

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2011, against sole defendant United States (“Defendant”). (ECF No. 1.) On February 8, 2016,

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the Court issued an order granting Defendant’s motion for summary judgment and closed this

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case. (ECF No. 42.)

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On February 23, 2016, Plaintiff submitted a Letter to the Judge which the Court

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construes as a motion for reconsideration of the Court’s February 8, 2016 order. (ECF No. 44.)

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On March 2, 2016, Defendant United States filed a response in opposition. (ECF No. 45.)
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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).
Here, Plaintiff requests clarification of the Court’s February 8, 2016 order that closed

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this case. Plaintiff expresses confusion, asserting that this case consisted of “two cases” which

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were combined. (ECF No. 44.) Plaintiff asks whether the February 8, 2016 order closed “both

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of my cases” and if so, Plaintiff requests reconsideration of the Court’s order. (Id.)

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Defendant argues that Plaintiff fails to state any basis for reconsideration, because

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Plaintiff’s Bivens claim did not pass screening, and his FTCA claim for medical negligence,

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which was allowed to proceed, was denied on summary judgment.

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Plaintiff’s case contained two claims, a Bivens claim and a FTCA claim. Defendant has

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correctly stated how both of Plaintiff’s claims were resolved in this case. The Court’s February

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8, 2016 order closed this case in its entirety, and none of Plaintiff’s claims remain pending.

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With respect to reconsideration of the order, Plaintiff has not set forth facts or law of a strongly

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convincing nature to induce the Court to reverse its prior decision. Therefore, the motion for

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reconsideration shall be denied.

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III.

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

reconsideration, filed on February 23, 2016, is DENIED.

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IT IS SO ORDERED.
Dated:

May 2, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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