Manning v. Zamora et al

Filing 13

ORDER DENYING 12 Plaintiff's Motion for Reconsideration and ORDER EXTENDING TIME for Plaintiff to Either File a First Amended Complaint OR Notify the Court of His Willingness to Proceed Only on the Claims Found Cognizable by the Court, signed by Magistrate Judge Gary S. Austin on 8/16/2013. First Amended Complaint ot Notice due by 9/20/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEROY MANNING,

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Plaintiff,

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1:12-cv-01621-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 12.)

vs.

ORDER EXTENDING TIME FOR
PLAINTIFF TO EITHER:

L. D. ZAMORA, et al.,

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Defendants.

(1)

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NOTIFY THE COURT OF HIS
WILLINGNESS TO PROCEED
ONLY ON THE CLAIMS FOUND
COGNIZABLE BY THE COURT

NEW DEADLINE: SEPTEMBER 20, 2013

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FILE A FIRST AMENDED
COMPLAINT, OR

(2)

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I.

BACKGROUND

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Leroy Manning ("Plaintiff") is a state prisoner proceeding pro se in this civil rights

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action Pursuant to 42 U.S.C. § 1983. This action was initiated by civil Complaint filed on

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October 3, 2012. (Doc. 1.)

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On July 25, 2013, the court issued an order requiring Plaintiff to either (1) file an

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amended complaint, or (2) notify the court of his willingness to proceed only on the claims

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found cognizable by the court. (Doc. 11.) On August 9, 2013, Plaintiff filed a motion for

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reconsideration of the court’s order. (Doc. 12.)
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II.

MOTION FOR RECONSIDERATION

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A.

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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

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

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

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

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

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

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

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

Legal Standard

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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).
Plaintiff’s Motion

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B.

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Plaintiff disagrees with the court’s assessment of his claims and seeks a different

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decision. Plaintiff also cites the missnumbering of two sections of the order, which does not

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affect the content of the order, and discrepancies in the order between Plaintiff’s allegations

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and Plaintiff’s exhibits.

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///
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Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court
to reverse its prior decision. Therefore, Plaintiff’s motion for reconsideration shall be denied.

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Plaintiff’s remedy at this juncture, as set forth in the court’s order of July 25, 2013, is to

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either file a First Amended Complaint, clearly stating the allegations and claims upon which he

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wishes to proceed, or notify the court of his willingness to proceed with the original Complaint

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on the claims found cognizable by the court. The court will not order service of process until

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Plaintiff is able to proceed with a complaint which the court has determined contains

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cognizable claims against the defendants to be served. 28 U.S.C. 1915(A).
Plaintiff shall be granted additional time in which to comply with the court’s order of

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July 25, 2013.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for reconsideration of the court’s order of July 25, 2013, is
DENIED; and

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2.

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Plaintiff is granted an extension of time until September 13, 2013, in which to
either:

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(1)

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file a First Amended Complaint, pursuant to the court’s order of
July 25, 2013; or

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(2)

notify the court of his willingness to proceed with the original

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Complaint, with the claims found cognizable in the court’s order

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of July 25, 2013.

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IT IS SO ORDERED.
Dated:

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August 16, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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