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

Filing 92

ORDER DENYING Plaintiff's 82 Motion for Reconsideration of Court's Order of July 20, 2015, signed by Magistrate Judge Gary S. Austin on 9/15/15. (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ANTWOINE BEALER,

12

Plaintiff,

13
14

vs.

1:12-cv-01516-AWI-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION OF COURT’S
ORDER OF JULY 20, 2015
(ECF No. 82.)

R. BRANNUM, et al.,

15

Defendants.

16
17
18

I.

RELEVANT PROCEDURAL HISTORY

19

Antwoine Bealer ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

20

with this civil rights action pursuant to 42 U.S.C. § 1983. On September 14, 2012, Plaintiff

21

filed the Complaint commencing this action. (Doc. 1.) This case now proceeds with the Fourth

22

Amended Complaint filed on March 28, 2014, against defendants Correctional Officer S. Rios

23

and Sergeant Brannum (“Defendants”) for use of excessive force in violation of the Eighth

24

Amendment. (Doc. 21.)

25

On March 2, 2015, the court issued a Discovery and Scheduling Order establishing

26

pretrial deadlines for the parties, including a deadline of November 2, 2015, to complete

27

discovery, and a deadline of January 11, 2016, to file dispositive motions. (Doc. 45.) This case

28
1

1

is presently in the discovery phase. On April 15, 2015, Defendants filed a motion for summary

2

judgment, which is pending. (ECF No. 48.)

3

On July 31, 2015, Plaintiff filed a motion for reconsideration under Rule 60 of the

4

court’s order issued on July 20, 2015, which denied Plaintiff’s renewed motion to defer the

5

court’s ruling on Defendants’ motion for summary judgment.1 (ECF No. 82.)

6

II.

MOTION FOR RECONSIDERATION

7

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

8

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

9

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

10

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

11

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

12

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

13

prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .”

14

exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

15

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

16

his control . . . .”

17

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

18

facts or circumstances are claimed to exist which did not exist or were not shown upon such

19

prior motion, or what other grounds exist for the motion.”

Id. (internal quotation marks and citation omitted).

In seeking

20

“A motion for reconsideration should not be granted, absent highly unusual

21

circumstances, unless the district court is presented with newly discovered evidence, committed

22

clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals,

23

Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations

24

marks and citations omitted, and “[a] party seeking reconsideration must show more than a

25
26
27
28

1

On May 12, 2015, Plaintiff filed a motion under Rule 56 for the court to defer its ruling on
Defendants’ motion for summary judgment pending discovery. (ECF No. 54.) On May 21, 2015, the court denied
the motion, without prejudice to renewal of the motion within thirty days. (ECF No. 58.) On June 1, 2015,
Plaintiff filed a renewed motion to defer the court’s ruling on Defendants’ motion for summary judgment. (ECF
No. 66.) The renewed motion was denied on July 20, 2015. (ECF No. 76.)
2

1

disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

2

considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

3

F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

4

strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

5

Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

6

reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

7

Here, Plaintiff has not set forth facts or law of a strongly convincing nature in his

8

motion for reconsideration to induce the court to reverse its prior decision. Therefore, the

9

motion for reconsideration shall be denied, with prejudice.

10
11
12

III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

reconsideration, filed on July 31, 2015, is DENIED.

13
14
15
16

IT IS SO ORDERED.
Dated:

September 15, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3