Bibbs v. Tilton et al

Filing 20

ORDER Denying Plaintiff's Motion For Reconsideration (Doc. 19 ), signed by Magistrate Judge Gary S. Austin on 08/23/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARTIN J. BIBBS,

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1:11-cv-01012-GSA-PC

Plaintiff,

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ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION
(Doc. 19.)

vs.

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JAMES E. TILTON, et al.,

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Defendants.
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I.

BACKGROUND

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Martin J. Bibbs (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September

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7, 2010, at the United States District Court for the Northern District of California. (Doc. 1.)

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Plaintiff paid the filing fee for this action. Id. On June 16, 2011, this case was transferred to the

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Eastern District of California. (Doc. 8.)

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On July 1, 2011, Plaintiff consented to Magistrate Judge jurisdiction in this action, and no

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other parties have made an appearance. (Doc. 12.) Therefore, pursuant to Appendix A(k)(4) of the

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Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local Rule

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Appendix A(k)(3).

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On June 27, 2011 and November 10, 2011, Plaintiff filed motions for entry of default against

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defendants. (Docs. 11, 15.) On December 8, 2011, the Court entered an order denying Plaintiff's
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motions for entry of default and granting Plaintiff additional time to serve process after such time

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as the Court screens the Complaint and finds it suitable for service. (Doc. 16.) On August 10, 2012,

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Plaintiff filed a motion for reconsideration of the Court's order. (Doc. 19.)

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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 argues that the Court is not required to screen his Complaint to determine its

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suitability for service, because the Complaint was already screened and found suitable for service

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at the Northern District of California before the case was transferred to the Eastern District. Plaintiff

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argues that the undersigned has no jurisdiction to revoke the Northern District's finding that the case

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is suitable for service.

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As Plaintiff was advised in the Court's order of December 8, 2011, the court is required to

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screen complaints brought by prisoners, such as Plaintiff, seeking relief against a governmental entity

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or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a

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complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or
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malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). While it is evident

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on the court record that the Clerk at the Northern District issued summonses and forwarded them to

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Plaintiff for service of process in this action, there is no evidence on the record that Plaintiff's

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Complaint received the requisite screening by the Court. (Docs. 6, 7.) Therefore, the Court shall

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screen the Complaint at this juncture to determine whether Plaintiff states cognizable claims for

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relief against any the defendants. After the Court has screened the complaint, the Court will issue

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an order with instructions for Plaintiff to serve process.

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Plaintiff has not demonstrated that the Court committed clear error, or presented the Court

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with new information of a strongly convincing nature, to induce the Court to reverse its prior

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decision. Therefore, Plaintiff’s 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 August 10, 2012, is DENIED.

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IT IS SO ORDERED.
Dated:
6i0kij

August 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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