Smith v. California Department of Corrections, et al

Filing 16

ORDER DENYING Plaintiff's 15 Motion for Reconsideration, signed by Magistrate Judge Gary S. Austin on 5/23/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRACY SMITH,

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Plaintiff,

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1:11-cv-00193-GSA-PC
ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION
(Doc. 15.)

vs.
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendants.
/

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I.

BACKGROUND

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Tracy Smith (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. On August 19, 2009, Plaintiff consented to the jurisdiction of a

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United States Magistrate Judge, and no other party has appeared in this action. (Doc. 5.) Therefore,

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pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the

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undersigned shall conduct any and all proceedings in the case until such time as reassignment to a

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District Judge is required. Local Rule Appendix A(k)(3).

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This action was dismissed on April 14, 2011, without prejudice, based on Plaintiff’s failure

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to obey the Court’s order of February 8, 2011 which required him to either pay the filing fee for this

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action or submit an application to proceed in forma pauperis, within thirty days. (Doc. 13.) On May

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13, 2011, Plaintiff filed a motion entitled “Motion to Quash Federal Court Filing Fee and to Excuse
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Complainant’s Tardiness in Failing to Reply to Court Orders ...,” which the Court shall treat as a

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motion for reconsideration of the Court’s order dismissing this action. (Doc. 15.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d

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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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to show “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff moves the Court to re-open this case, excuse the payment of the filing fee, and grant

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him leave to file a federal writ of mandamus to compel an investigation by FBI officials into his

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allegations that defendants implanted him with a device. Plaintiff maintains that although he

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received the Court’s order of February 8, 2011, he failed to respond because he was transferred from

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Sierra Conservation Center to Mule Creek State Prison and did not have access to his legal materials.

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Plaintiff’s argument that he required legal materials to comply with the Court’s order is

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without basis. The Court’s order required Plaintiff to either complete and return an application to

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proceed in forma pauperis, which the Court provided to Plaintiff, or pay the $350.00 filing fee for

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this action. Neither of these options required Plaintiff to refer to legal materials. Plaintiff’s case was

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dismissed without prejudice and without obligation to pay the $350.00 filing fee. Plaintiff has not
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shown clear error or other meritorious grounds for relief, and has therefore not met his burden as the

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party moving for reconsideration. Marlyn Nutraceuticals, Inc., 571 F.3d at 880. Therefore, the

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motion for 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 May 13, 2011, is DENIED.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 23, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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