Polk v. Lattimore et al

Filing 53

ORDER Denying Motion For Reconsideration (Doc. 52 ; also resolves Doc. 51 ), ORDER Granting Plaintiff's Fourth Motion For Extension Of Time To File Fourth Amended Complaint (Doc. 50 ), DEADLINE: February 27, 2015, signed by Magistrate Judge Gary S. Austin on 2/4/2015. (Fourth Amended Complaint due by 2/27/2015) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,

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vs.
MARY LATTIMORE, et al.,

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Defendants.

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1:12-cv-01156 AWI-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 52; also resolves Doc. 51.)
ORDER GRANTING PLAINTIFF’S
FOURTH MOTION FOR EXTENSION
OF TIME TO FILE FOURTH
AMENDED COMPLAINT
(Doc. 50.)
DEADLINE: FEBRUARY 27, 2015

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I.

BACKGROUND

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Plaintiff is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. '

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1983. On February 2, 2015, Plaintiff filed objections to the court’s screening order issued on

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June 19, 2014, which dismissed the Third Amended Complaint with leave to amend. (Doc.

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52.) The court construes Plaintiff’s objections as a motion for reconsideration of the court’s

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screening order. Also on February 2, 2015, Plaintiff filed a motion for extension of time to file

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a Fourth Amended Complaint. (Doc. 50.) Plaintiff’s motion for reconsideration and motion

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for extension of time are now before the court.
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II.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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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) (internal quotations marks and

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citation omitted). The moving party “must demonstrate both injury and circumstances beyond

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his control . . . .”

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

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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.”

Id. (internal quotation marks and citation omitted).

In seeking

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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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The court has thoroughly reviewed Plaintiff’s motion for reconsideration. Plaintiff

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disagrees with the court’s findings in its screening order, arguing that the Third Amended

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Complaint should not have been dismissed for violation of Rules 8(a) and 18, and that the court
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should not have imposed a twenty-five page limit for the Fourth Amended Complaint.

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Plaintiff has not set forth facts or law of a strongly convincing nature in her motion for

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reconsideration to induce the court to reverse its prior decision. Plaintiff’s remedy at this stage

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of the proceedings is to file a Fourth Amended Complaint clearly setting forth her claims,

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following the court’s guidance in the screening order.

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reconsideration shall be denied.

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III.

Therefore, the motion for

MOTION FOR EXTENSION OF TIME

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Plaintiff requests an extension of time to file a Fourth Amended Complaint. Plaintiff

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anticipates that this is the last extension of time she will require to amend the complaint. Good

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cause appearing, Plaintiff shall be granted an extension of time.

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IV.

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 February 2, 2015, is DENIED;

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2.

Plaintiff’s motion for extension of time, filed on February 2, 2015, is

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GRANTED; and
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Plaintiff is GRANTED an extension of time until February 27, 2015 in which

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to file a Fourth Amended Complaint, pursuant to the court’s order of June 19,

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2014.

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IT IS SO ORDERED.
Dated:

February 4, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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