Calloway v. Kelley et al

Filing 21

ORDER Denying 18 Motion for Reconsideration, signed by Magistrate Judge Stanley A. Boone on 9/16/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

Case No. 1:11-cv-01090-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION

v.
(ECF No. 18)

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G. KELLEY, et al.,
Defendants.

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Plaintiff Jamisi Jermaine Calloway (“Plaintiff”), a prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action on July 1, 2011. On August 23, 2013, an order issued

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requiring Plaintiff to either file an amended complaint or notify the Court of his willingness to

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proceed on the claims found to be cognizable in the order. (ECF No. 13.) On September 5, 2013,

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Plaintiff filed a motion for copying services and reconsideration of appointment of counsel and a

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notice that he wished to proceed on the claims found to be cognizable and a second motion

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requesting reconsideration of appointment of counsel. (ECF Nos. 14, 15.) On September 6,

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2013, the Court issued an order denying Plaintiff’s motion. (ECF No. 16.) On September 13,

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2013, Plaintiff filed a motion for reconsideration. (ECF No. 18.)

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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The

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Rule permits a district court to relieve a party from a final order or judgment on grounds of: “(1)
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mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party, . . .

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or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration

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must be made within a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable

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remedy to 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). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. Local Rule 230(j)

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requires Plaintiff to 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.” “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,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (emphasis in original).

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Plaintiff does not present newly discovered evidence, clear error, or an intervening change

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in the law. Plaintiff’s motion merely reiterates the same argument made in his initial motion and

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does not meet the standards for granting reconsideration. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated:
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September 16, 2013

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UNITED STATES MAGISTRATE JUDGE

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