Dragusica v. Robles et al
Filing
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ORDER ADOPTING 17 FINDINGS AND RECOMMENDATIONS, and DENYING Plaintiff's 8 Request for Preferred Legal Status; ORDER DENYING Plaintiff's 18 Motion for Reconsideration, signed by District Judge Lawrence J. O'Neill on 7/1/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT FRANCIS DRAGUSICA,
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CASE NO. 1:11-cv-00363-LJO-SMS PC
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, AND DENYING
PLAINTIFF’S REQUEST FOR PREFERRED
LEGAL STATUS
v.
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ROLANDO DIA ROBLES, et al.,
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Defendants.
(ECF Nos. 8, 17, 19)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
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(ECF No. 18)
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Plaintiff Robert Francis Dragusica (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to
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a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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Plaintiff filed a motion for a preliminary injunction mandating he be given preferred legal
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status and a motion to compel production of his medical records on March 17, 2011. (ECF Nos. 7,
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8.) On June 17, 2011, the Magistrate Judge filed an order denying Plaintiff’s motion to compel
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production of his medical records and findings and recommendations which contained notice that
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any objections to the findings and recommendations were to be filed within fifteen days. (ECF No.
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17.) Plaintiff filed a motion for reconsideration and objections to the findings and recommendations
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on June 29, 2011. (ECF Nos. 18, 19.)
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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the Court may relieve a party
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from an order for any reason that justifies relief and “is to be used sparingly as an equitable remedy
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to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.
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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation
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omitted). The moving party “must demonstrate both injury and circumstances beyond his control
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. . . .” Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in
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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed to exist
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which did not exist or were not shown upon such prior motion, or what other grounds exist for the
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motion,” and “why the facts or circumstances were not shown at the time of the prior 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,” and it “may not be used to raise arguments or
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present evidence for the first time when they could reasonably have been raised earlier in the
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litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
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2009) (internal quotations marks and citations omitted) (emphasis in original). Plaintiff’s motion
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to compel was filed prematurely and his motion for reconsideration is devoid of any ground entitling
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Plaintiff to reconsideration of the Court’s order. Accordingly, Plaintiff’s motion for reconsideration
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shall be denied.
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In his opposition to the findings and recommendation Plaintiff requests that the Court provide
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him with a letter stating that he has a current and ongoing court case that is time sensitive and he
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qualifies for preferred legal user status. Plaintiff’s complaint is pending screening and there are no
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pending deadlines in this action. The Court will not misrepresent the action in order to allow
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Plaintiff access to the law library.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings
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and recommendations to be supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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The findings and recommendations, filed June 17, 2011, is adopted in full;
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2.
Plaintiff’s motion for preferred legal status, filed March 17, 2011,is DENIED; and
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Plaintiff’s motion for reconsideration, filed June 29, 2011, is DENIED.
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IT IS SO ORDERED.
Dated:
66h44d
July 1, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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