Polk v. Lattimore et al

Filing 136

ORDER DENYING Plaintiff's 133 Motion for Reconsideration signed by District Judge Dale A. Drozd on 2/26/2021. (Lundstrom, T)

Case 1:12-cv-01156-DAD-BAM Document 136 Filed 03/01/21 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,

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No. 1:12-cv-01156-DAD-BAM (PC)

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.
MARY LATTIMORE, et al.,

(Doc. No. 133)

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Defendants.

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Plaintiff Susan Mae Polk is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On December 4, 2020, the undersigned adopted the findings and recommendations issued

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by the assigned magistrate judge (Doc. No. 120), ordering that this action would proceed only on

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plaintiff’s fifth amended complaint, filed February 15, 2019 (Doc. No. 117), against Defendant

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Baron for retaliation in violation of the First Amendment and deliberate indifference in violation

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of the Eighth Amendment; and ordering that all other claims dismissed from this action for failure

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other to state a claim with prejudice because the granting of further leave to amend would be

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futile. (Doc. No. 127.) On February 22, 2021, plaintiff filed a motion for relief from the

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December 4, 2020 order under Federal Rule of Civil Procedure 60. (Doc. No. 133.)

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Case 1:12-cv-01156-DAD-BAM Document 136 Filed 03/01/21 Page 2 of 4
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In her motion for reconsideration under Rule 60, plaintiff contends that the court should

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reconsider various aspects of its order by making fourteen arguments and presenting numerous

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clarifications. (Id. at 8–25.) The court has carefully reviewed and considered all of plaintiff’s

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arguments and points; however, plaintiff simply has provided no basis under Rule 60(b) to

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support reconsideration of the court’s December 4, 2020 order.

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”

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Fed. R. Civ. P. 60(b). Reconsideration of a prior order is an extraordinary remedy “to be used

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sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.

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Estate of Bishop, 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In

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seeking reconsideration under Rule 60, the moving party “must demonstrate both injury and

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circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and

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citation omitted).
“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.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown”

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previously, “what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown” at the time the substance of the order which is objected to was considered.

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Case 1:12-cv-01156-DAD-BAM Document 136 Filed 03/01/21 Page 3 of 4
Here, plaintiff’s motion does not identify any basis under Rule 60(b) upon which this

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court should reconsider its order denying certain of her claims. The court addresses below

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several points in plaintiff’s arguments, which appear to stem from misunderstandings of the

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court’s December 4, 2020 order.

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Objections 1, 2, 4, 6, 10: As the court noted in its previous order, it was unclear from

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plaintiff’s complaint whether an injunction against defendant Baron was sought,1 but to the extent

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one were, it would be dismissed because plaintiff no longer is incarcerated at the prison where

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defendant Baron is employed. (Doc. No. 127 at 4–5.) Although plaintiff alleges she is still

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suffering repercussions from the “snitch jacket” defendant Baron allegedly placed on her, she

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does not allege any present actions by defendant Baron from which she seeks relief. (Id.)

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Furthermore, no preliminary injunctive relief could have been issued at the time of the December

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4, 2020 order, because no defendant had yet appeared. (Id. at 4 n.3.)

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Objections 2, 3, 5, 7, 8, 9, 10, 11, 14: Injunctive relief against the California Department

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of Corrections and Rehabilitation (“CDCR”) Director of Adult Institutions was dismissed because

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the Director was not a party to this action. (Id. at 6.) The court explained that it could not permit

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plaintiff to amend her complaint to add the Director, because the Ninth Circuit had already

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dismissed an identical claim against the Director on appeal. (Id.) The Director is not a party to

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this action because of this procedural history, not because plaintiff had neglected to include the

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director in the caption of the complaint.

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Objection 12, 13: Plaintiff has previously been advised that federal courts are not able to

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hear large numbers of unrelated claims against many defendants in a single action, pursuant to

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Federal Rules of Civil Procedure 8 and 18, as plaintiff acknowledges in the pending motion. (Id.

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at 6–7; Doc. No. 133 at 24.) Plaintiff is again advised that this court’s order dismissing claims in

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this action does not foreclose the ability of plaintiff to seek an injunction from officials at C.I.W.,

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if she believes it is necessary, but only prohibits her from seeking that relief in this action.

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Plaintiff clarifies in the pending motion she is not seeking an injunction against defendant
Baron. (Doc. No. 133 at 9–11.)
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Case 1:12-cv-01156-DAD-BAM Document 136 Filed 03/01/21 Page 4 of 4
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Accordingly,

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Plaintiff’s motion for reconsideration (Doc. No. 133) is denied; and

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This case is referred back to the assigned magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

February 26, 2021
UNITED STATES DISTRICT JUDGE

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