Herrera v. Rouch

Filing 99

ORDER DENYING Plaintiff's Motion for Reconsideration 43 : Motion is DENIED with prejudice, signed by Magistrate Judge Michael J. Seng on 10/28/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

v.

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CASE NO. 1:13-cv-00289-LJO-MJS

ROUCH,

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(ECF NO. 43)
Defendant.

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Plaintiff Roberto Herrera is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.

This action

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proceeds on the Second Amended Complaint which alleges Defendant Rouch exhibited
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deliberate indifference to Plaintiff’s serious medical need. (ECF No. 18.)

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On September 20, 2013 and October 17, 2013 Plaintiff filed motions seeking a
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preliminary injunction. (ECF Nos. 21 and 25.) Plaintiff claimed he suffers from chronic
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pain and has been denied effective medication and thermal underwear needed for pain
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relief. He requested a court order directing the Defendant to resolve Plaintiff’s medical

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issues.

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Plaintiff’s motions for preliminary injunctive relief be denied, without prejudice. (ECF No.

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29.) Plaintiff filed objections on January 6, 2014 and the findings and recommendations

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were adopted on February 13, 2014. (ECF Nos. 35 and 39.)

(Id.)

The Court issued findings and recommendations recommending that

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On February 28, 2014, Plaintiff filed a motion seeking reconsideration of the

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Court’s order denying his motions for a preliminary injunction. (ECF No. 43.) Rule

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60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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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

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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

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his control . . . .”

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

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different facts or circumstances are claimed to exist which did not exist or were not

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

Id. (internal quotation marks and citation omitted).

In seeking

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

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circumstances, unless the . . . court is presented with newly discovered evidence,

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

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

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(internal quotations marks and citations omitted), and “[a] party seeking reconsideration

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must show more than a disagreement with the Court’s decision, and recapitulation . . . ”

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of that which was already considered by the Court in rendering its decision. U.S. v.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff urges the Court to reconsider its ruling without providing a compelling

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reason to do so. The motion for reconsideration sets out the basic facts underlying

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Plaintiff’s claim and makes clear that Plaintiff disagrees with the Court’s conclusion.

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However, Plaintiff’s has not shown clear error or other meritorious grounds for relief. He

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has not met the burden imposed on a party moving for reconsideration.
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Marlyn

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Nutraceuticals, Inc., 571 F.3d at 880. Accordingly, Plaintiff’s Motion for Reconsideration

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(ECF No. 43) is DENIED, with prejudice.

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IT IS SO ORDERED.
Dated:

October 28, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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