Brown v. Cates, et al.

Filing 21

ORDER Denying 20 Motion for Reconsideration, signed by Magistrate Judge Gary S. Austin on 07/25/14. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LONNIE CHARLES BROWN, 12 13 14 15 Plaintiff, vs. 1:13-cv-00077-GSA-PC ORDER DENYING MOTION FOR RECONSIDERATION (Doc. 20.) MATTHEW CATE, et al., Defendants. 16 17 Lonnie Charles Brown (APlaintiff@) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this 19 action on January 6, 2013. (Doc. 1.) 20 On February 19, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action 21 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 3.) 22 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 23 California, the undersigned shall conduct any and all proceedings in the case until such time as 24 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 25 On May 8, 2014, the court issued an order dismissing Plaintiff’s Complaint for failure 26 to state a claim, with leave to file an amended complaint within thirty days. (Doc. 17.) The 27 thirty-day deadline expired, and Plaintiff failed to comply with the order or otherwise respond 28 to the order. (Court Record.) On June 18, 2014, the undersigned issued an order dismissing 1 1 this action for failure to state a claim, and the court entered judgment, closing this case. (Docs. 2 18, 19.) On July 14, 2014, Plaintiff filed a motion for reconsideration of the dismissal order 3 and judgment. (Doc. 20.) 4 II. MOTION FOR RECONSIDERATION 5 Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that 6 justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent 7 manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist. 8 Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation 9 omitted). The moving party “must demonstrate both injury and circumstances beyond his 10 control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of 11 an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or 12 circumstances are claimed to exist which did not exist or were not shown upon such prior 13 motion, or what other grounds exist for the motion.” 14 “A motion for reconsideration should not be granted, absent highly unusual 15 circumstances, unless the district court is presented with newly discovered evidence, committed 16 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 17 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations 18 marks and citations omitted, and “[a] party seeking reconsideration must show more than a 19 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 20 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 21 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a 22 strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare 23 Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and 24 reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 25 Plaintiff’s Motion 26 Plaintiff requests reconsideration of the court’s order dismissing this case, asserting that 27 he was unable to comply with the court’s May 8, 2014 order because the order was stolen from 28 his cell by correctional officers. Plaintiff claims that he “previously composed a notice to your 2 1 Eastern District Court requesting a reissue of that order as well as a[n] extended time for reply 2 in accordence (sic) to your order.” (Doc. 20 at 1:14-18.) 3 Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court Taking as true Plaintiff’s assertions in the motion for 4 to reverse its prior decision. 5 reconsideration, Plaintiff did not use due diligence in responding to the court’s order of May 8, 6 2014. Plaintiff acknowledges that he received the court’s order and knew that he had a court 7 deadline to comply with the order. Plaintiff also asserts that he prepared a request for the court 8 to provide him with another copy of the order, and for an extension of time to comply with the 9 order. However, Plaintiff does not assert that he mailed the request to the court, and the court 10 has no record of receipt of such request. 11 reconsideration shall be denied. 12 III. 13 14 For these reasons, Plaintiff’s motion for CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration, filed on July 14, 2014, is DENIED. 15 16 17 18 IT IS SO ORDERED. Dated: July 25, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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