Swearington v. California Department of Corrections and Rehabilitation

Filing 26

ORDER Denying Plaintiff's 25 Objection to Dismissal of Action, signed by Magistrate Judge Michael J. Seng on 5/30/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE SWEARINGTON,

Case No. 1:12-cv-00958-MJS (PC)

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Plaintiff,

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ORDER DENYING PLAINTIFF’S
OBJECTION TO DISMISSAL OF ACTION

v.
(ECF No. 25)

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CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

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Defendants.

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Plaintiff is a state prisoner. He filed this action pursuant to 42 U.S.C. § 1983

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proceeding pro se and in forma pauperis. The Complaint and First Amended Complaint

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were dismissed for failure to state a claim. On April 28, 2014, the Court screened the

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Second Amended Complaint and dismissed the action for failure to state a claim.

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Judgment was entered thereon.
On May 27, 2014 Plaintiff filed an objection to dismissal of his action. The objection,

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construed as a request for reconsideration, is now before the Court.1
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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Plaintiff objects to the district judge’s order. However, this matter proceeded on Plaintiff’s consent to
magistrate judge jurisdiction. (ECF No. 8.)

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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). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed

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to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the

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time of the prior motion.”

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Plaintiff’s objection rehashes matters already considered by the Court and found

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deficient. Plaintiff is referred to the order dismissing the action for the specific reasons why

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his claims were found deficient and dismissed without leave to amend. (See ECF No. 23.)

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Plaintiff’s disagreement with the Court’s order is not alone a basis for reconsideration.

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Plaintiff also objects the action was wrongly dismissed under the “three strikes”

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provision of 28 U.S.C. § 1915(g). However, the Court did not rely on § 1915(g) in

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dismissing the action. Id.

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Plaintiff does not identify any error of law or fact in the Court’s April 28, 2014 order
dismissing the action with prejudice for failure to state a claim.
Accordingly, for the reasons stated, it is HEREBY ORDERED that Plaintiff’s May 27,

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2014 objection to dismissal of the action (ECF No. 25) construed as a request for

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reconsideration is DENIED.

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IT IS SO ORDERED.
Dated:

May 30, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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