Contreraz v. Director of CDCR et al

Filing 36

ORDER DENYING 35 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 3/19/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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vs.
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DIRECTOR OF CDCR, et al.,
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Defendants.
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____________________________________)

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I.

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LOFOFORA EVA CONTRERAZ,

1:11-cv-01222-LJO-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 35.)

BACKGROUND

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Lofofora Eva Contreraz ("Plaintiff"), a state prisoner housed at Salinas Valley State Prison

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(“SVSP”) in Soledad, California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C.

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§ 1983. This case was dismissed on January 28, 2013, based on Plaintiff’s failure to obey the Court’s

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order to pay the filing fee for this action. (Doc. 33.) On March 15, 2013, Plaintiff filed a motion to

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reopen the case, which the Court construes as a motion for reconsideration of the Court’s order

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dismissing this action. (Doc. 35.)

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II.

MOTION FOR RECONSIDERATION

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A.

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

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

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Legal Standard

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utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th

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Cir. 2008) (internal quotations marks and citation omitted). The moving party “must demonstrate both

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injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted).

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In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or

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different 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.”

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

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

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intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,

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571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted, and “[a] party

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seeking reconsideration must show more than a disagreement with the Court’s decision, and

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

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

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B.

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Plaintiff requests reconsideration of the Court’s January 28, 2013 order dismissing this action,

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because since November 15, 2012, he has been undergoing mental therapy at SVSP through the

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Department of Mental Health and does not have access to the law library or his legal property. Plaintiff

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reports that he was unable to respond to the Court’s orders in this action or defend against dismissal of

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the case.

Discussion

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In this action, the Court found that prior to filing this action, Plaintiff had filed at least three

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actions that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may

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be granted. (Doc. 31.) Based on this finding, Plaintiff’s in forma pauperis status was revoked pursuant

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to 28 U.S.C. § 1915(g), and Plaintiff was ordered to pay the $350.00 filing fee for this action within

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fifteen days. (Doc. 32.) The fifteen day time period expired, and Plaintiff failed to pay the filing fee.

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(Court Record.) Therefore, on January 28, 2013, the case was dismissed without prejudice. (Doc. 33.)

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Plaintiff’s remedy at this juncture is to bring his claims in a new case, with payment of the

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$350.00 filing fee. Plaintiff’s arguments in support of reopening this case are not persuasive. Plaintiff

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complains that he was unable to respond to the Court’s orders because he does not have access to the

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library or legal materials. However, Plaintiff did not require access to the law library or legal materials

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to pay the filing fee. Moreover, Plaintiff has not explained how he expects to prosecute this action if

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it is reopened; Plaintiff asserts that he will be participating in the mental health program, without access

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to the law library or legal materials, for one-to-two more years. Plaintiff has not demonstrated that the

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Court committed clear error, or presented the Court with new information of a strongly convincing

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nature, to induce the Court to reverse its prior decision. Therefore, the motion for reconsideration shall

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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

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of the Court’s order dismissing this action, filed on March 15, 2013, is DENIED.

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IT IS SO ORDERED.

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Dated:

March 19, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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