Shepard v. Cohen et al

Filing 58

ORDER Denying Motion For Reconsideration (Doc. 57 ), signed by Magistrate Judge Gary S. Austin on 9/3/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

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vs.

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1:11-cv-00535-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 57.)

COHEN, et al.,

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Defendants.

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I.

BACKGROUND
Lamont Shepard (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. ' 1983.

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commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the

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Second Amended Complaint filed on May 19, 2014, against defendants Dr. Cohen, Sgt. J.

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Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on

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Plaintiff's due process claim and against defendants Dr. Cohen, Sgt. J. Lopez, C/O Z. Dean, and

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C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.)

Plaintiff filed the Complaint

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On July 7, 2014, Plaintiff filed a motion to compel and for sanctions. (Doc. 45.) On

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August 13, 2014, the court issued an order granting the motion to compel and denying the

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motion for sanctions, without prejudice to renewal of the motion for sanctions within thirty

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days, showing evidence of his costs in bringing the motion to compel. (Doc. 51.) On August
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28, 2014, Plaintiff filed objections to the order denying the motion for sanctions, which the

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court treats as a motion for reconsideration. (Doc. 57.)

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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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Discussion

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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. Plaintiff merely states that he believes sanctions should be

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imposed for Defendants’ failure to answer his discovery requests. As Plaintiff was advised in

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the court’s order of August 13, 2014, before the court will reconsider the motion for sanctions,

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Plaintiff must show evidence of his costs in bringing the motion to compel.1 Plaintiff has not

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provided the required evidence.

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Plaintiff also requests certain documents from Defendants. To the extent that Plaintiff

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seeks a court order compelling Defendants to respond to his discovery requests, Plaintiff must

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file a motion to compel. A motion to compel must be accompanied by a copy of Plaintiff=s

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discovery requests at issue and a copy of Defendants’ responses to the discovery requests.

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Further, as the moving party, Plaintiff bears the burden of informing the court, for each

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disputed response, why Defendants= responses are not justified. Plaintiff may not simply assert

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that he is dissatisfied with some of Defendants= responses, without argument or evidence.

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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 August 28, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

September 3, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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In his July 7, 2014 motion for sanctions, Plaintiff requested $1,000.00 in sanctions “as reasonable
expenses” in bringing the motion to compel. (Doc. 45 at 2:5-7.)
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