Gilmore v. Augustus, et al.

Filing 15

ORDER DENYING 14 Motion for Reconsideration; ORDER for Plaintiff to Comply With October 11, 2013 13 Screening Order by Either: (1) Filing a Second Amended Complaint Not Exceeding Twenty-Five Pages, OR (2) Notifying the Court of His Willingness to Proceed Only on the Claims Found Cognizable by the Court, signed by Magistrate Judge Gary S. Austin on 11/1/2013. Thirty-Day Deadline to File Second Amended Complaint OR Notify Court of Willingness to Proceed. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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C. DWAYNE GILMORE,

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Plaintiff,

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vs.
D. AUGUSTUS, et al.,

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Defendants.

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1:12-cv-00925-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 14.)
ORDER FOR PLAINTIFF TO COMPLY WITH
OCTOBER 11, 2013 SCREENING ORDER BY
EITHER:
(1)

FILING A SECOND AMENDED
COMPLAINT NOT EXCEEDING
TWENTY-FIVE PAGES, OR

(2)

NOTIFYING THE COURT OF HIS
WILLINGNESS TO PROCEED ONLY
ON THE CLAIMS FOUND
COGNIZABLE BY THE COURT

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THIRTY-DAY DEADLINE TO FILE SECOND
AMENDED COMPLAINT OR NOTIFY
COURT OF WILLINGNESS TO PROCEED

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I.

BACKGROUND

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C. Dwayne Gilmore (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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

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action on June 7, 2012. (Doc. 1.) On March 8, 2013, Plaintiff filed the First Amended

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Complaint. (Doc. 12.)

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On June 29, 2012, Plaintiff consented to the jurisdiction of a Magistrate Judge in this

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action, and no other parties have made an appearance. (Doc. 8.) Therefore, pursuant to

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Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall

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conduct any and all proceedings in the case until such time as reassignment to a District Judge

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is required. Local Rule Appendix A(k)(3).

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On October 11, 2013, the court issued a Screening Order requiring Plaintiff to either (1)

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file a Second Amended Complaint not exceeding twenty-five pages, or (2) notify the court of

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his willingness to proceed only on the claims found cognizable by the court.
On October 28, 2013, Plaintiff filed written Notice that he “does not wish to file an

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amended complaint and is willing to proceed on the excessive force claims against defendants

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C. Lockard, C. Lopez, J. Hightower, and J. J. Torres, and the medical claim against defendant J.

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J. Torres.” Notice, Doc. 14 at 1:17-22. In the same Notice, Plaintiff also requests the court to

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reconsider the court’s decision in the Screening Order concerning his claims against defendant

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John Doe. Id.

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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

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justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

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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

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

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an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion.”

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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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III.

DISCUSSION

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Plaintiff requests the court to reconsider its decision in the Screening Order concerning

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his claims in the First Amended Complaint against defendant John Doe for excessive force and

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torture. Plaintiff disagrees with the court’s assessment of these claims. Plaintiff reiterates his

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allegations against defendant John Doe from the First Amended Complaint and submits copies

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of photographs taken after his leg was injured during the incident at issue.

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Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court
to reverse its prior decision. Therefore, the motion for consideration shall be denied.

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At this stage of the proceedings, if Plaintiff disagrees with the court’s Screening Order,

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his remedy is to file a Second Amended Complaint clearly and succinctly stating the allegations

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and claims upon which he wishes to proceed. If Plaintiff chooses to amend the complaint, the

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court will screen the Second Amended Complaint based on his allegations stated therein.

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The screening order of October 11, 2013, required Plaintiff to choose between two

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options: either (1) file a Second Amended Complaint not exceeding twenty-five pages, or (2)

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notify the court of his willingness to proceed only on the claims found cognizable by the court.

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Plaintiff’s Notice of October 28, 2013, which states his willingness to proceed on the

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cognizable claims, but also requests reconsideration of the Screening Order, does not comply

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with the requirements of the Screening Order. Plaintiff shall be granted additional time to

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comply with the Screening Order.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed on October 28, 2013, is DENIED;

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2.

Within thirty days from the date of service of this order, Plaintiff is required to
comply with the court’s Screening Order of October 11, 2013 by either:

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(1)

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filing a Second Amended Complaint not exceeding twenty-five
pages, or

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(2)

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notifying the court of his willingness to proceed only on the
claims found cognizable by the court; and

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3.

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Plaintiff’s failure to comply with this order shall result in the dismissal of this
action.

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IT IS SO ORDERED.
Dated:

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November 1, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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