Bealer v. Warden of K.V.S.P. et al

Filing 14

ORDER DENYING 13 Motion for Reconsideration ; ORDER EXTENDING Time for Plaintiff to File Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 12/6/2012. Amended Complaint Deadline: January 7, 2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTWOINE BEALER,

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Plaintiff,

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1:12-cv-01516-AWI-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 13.)

vs.

ORDER EXTENDING TIME FOR PLAINTIFF
TO FILE SECOND AMENDED COMPLAINT

KVSP WARDEN, et al.,

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Defendants.

NEW DEADLINE: JANUARY 7, 2013

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/
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I.

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BACKGROUND
Antwoine Bealer ("Plaintiff") is a state prisoner proceeding pro se in a civil rights action

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

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September 14, 2012. (Doc. 1.) On September 18, 2012, the Court entered an order striking the

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Complaint for lack of signature, with leave to amend. (Doc. 4.) On October 4, 2012, Plaintiff

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filed the First Amended Complaint. (Doc. 8.) The Court screened the First Amended Complaint

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pursuant to 28 U.S.C. § 1915 and entered an order on October 24, 2012, dismissing the First

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Amended Complaint for failure to state a claim, with leave to file a Second Amended Complaint.

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(Doc. 12.) On November 19, 2012, Plaintiff filed a motion for reconsideration of the Court's

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order. (Doc. 13.)

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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 manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The

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moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id.

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(internal quotation marks and citation omitted). In seeking reconsideration of an order, Local

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Rule 230(k) requires Plaintiff to 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 grounds

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exist for 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,” 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 F.Supp.2d

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1111, 1131 (E.D. Cal. 2001).

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Discussion

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Plaintiff disagrees with the Court’s assessment of his claims. Plaintiff has not presented

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the Court with newly discovered evidence or shown that the Court committed clear error in

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screening the First Amended Complaint. Therefore, Plaintiff’s motion for reconsideration shall

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be denied. Plaintiff’s remedy at this juncture is to file a Second Amended Complaint, curing the

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deficiencies in the First Amended Complaint identified in the Court’s order of October 24, 2012.

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After the Second Amended Complaint is filed, the Court must screen it to determine if Plaintiff

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has stated any cognizable claims. Plaintiff is advised that his case cannot proceed until the Court

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has completed the screening process and found that Plaintiff states a cognizable claim. Plaintiff

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shall be granted additional time in which to prepare and file the Second Amended Complaint.
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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 November 19, 2012, is DENIED;

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2.

Plaintiff is granted an extension of time until January 7, 2013 in which to file an

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Second Amended Complaint in compliance with the Court’s order of October 24,

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2012; and

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3.

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Plaintiff's failure to comply with this order shall result in a recommendation that
this case be dismissed.

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IT IS SO ORDERED.
Dated:
6i0kij

December 6, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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