Bell v. Heberling et al

Filing 17

ORDER Denying Plaintiff's Motion for Reconsideration as Moot 15 , signed by Magistrate Judge Stanley A Boone on 3/1/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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HORACE BELL,

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CASE NO. 1:12-cv-01248-AWI-SAB (PC)
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION AS MOOT

v.
(ECF No.15)

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S. HEBERLING AND
JASPER O. SCHEER,

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Defendants.
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Plaintiff Horace Bell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. On July 27, 2012, Defendants removed this
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action to federal court. (ECF No. 2.) On August 15, 2012, Plaintiff filed a motion for an extension
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of time to file exhibits in support of his complaint. (ECF No. 11.) On November 26, 2012, the
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Court issued an order denying the extension of time as unnecessary. (ECF No. 14.) On December
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26, 2012, Plaintiff filed a motion for reconsideration. (ECF No. 15.)
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Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The
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Rule permits a district court to relieve a party from a final order or judgment on grounds of: “(1)
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mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud . . . by an opposing party, . . .
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or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration
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must be made within a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable
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remedy to 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). The moving party “must
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demonstrate both injury and circumstances beyond his control . . . .” Id. Local Rule 230(j)

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requires Plaintiff to show “what new or different facts or circumstances are claimed to exist

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

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the motion.” “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.” Marilyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (emphasis in original).

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The Court already notified Plaintiff in its previous order that a motion to extend time was

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unnecessary and that Plaintiff may amend his complaint without leave of the Court. (ECF No.

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14.) Under Rule 15(a) of the Federal Rules of Civil Procedure, a plaintiff may amend the

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pleading once as a matter of course at any time before a responsive pleading is served.

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Otherwise, a plaintiff may amend only by leave of the court or by written consent of the adverse

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party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case,

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a responsive pleading has not been served and Plaintiff has not previously amended his

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complaint. Therefore, Plaintiff may currently file an amended complaint without leave of the

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Court. However, if a responsive pleading were filed or if Plaintiff sought to amend his complaint

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a second time, then leave of the Court or Defendants’ written consent would be required. See

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Fed. R. Civ. P. 15(a). Thus, a motion for reconsideration is moot in this case. To the extent that

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Plaintiff seeks other relief from the Court, at this time the Court is unable to determine what, if

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any, relief Plaintiff seeks.

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Accordingly, it is hereby ORDERED that Plaintiff’s motion for reconsideration is

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DENIED as moot.

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IT IS SO ORDERED.

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Dated:
i1eed4

March 1, 2013
UNITED STATES MAGISTRATE JUDGE

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