Crisp v. Wasco State Prison et al

Filing 30

ORDER Denying Plaintiff's 29 Motion for Reconsideration signed by Magistrate Judge Barbara A. McAuliffe on 12/02/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OBIE CRISP,

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Plaintiff,
v.
WASCO STATE PRISON, et al.,

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Defendants.

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1:13-cv-00815-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF No. 29)

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I.

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Plaintiff Obie Crisp (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 30, 2013. Plaintiff

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filed a first amended complaint on August 22, 2013.

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Procedural Background

On May 15, 2014, the Court dismissed Plaintiff’s first amended complaint and granted

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him leave to amend within thirty days. (ECF No. 20.) Plaintiff filed a second amended

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complaint on June 16, 2014. (ECF No. 21.)

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On August 2, 2014, the Court dismissed Plaintiff’s second amended complaint and

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granted him leave to amend within thirty days. (ECF No. 23.) Plaintiff filed a third amended

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complaint on September 5, 2014. (ECF No. 24.)

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On November 7, 2014, the Court dismissed this action based on Plaintiff’s failure to state

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a cognizable section 1983 claim. (ECF No. 25.) Judgment was entered on the same date. (ECF

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No. 26.)
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On the same date, Plaintiff filed a motion for leave to amend the complaint. (ECF No.

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27.) The Court denied the motion to amend. In so doing, the Court found that Plaintiff failed to

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provide any grounds to alter the Court’s dismissal or to alter or amend the judgment pursuant to

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Federal Rule of Civil Procedure 59(e). (ECF No. 28.)

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On November 19, 2014, Plaintiff filed the instant motion for appeal and reconsideration.

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(ECF No. 29.) Although labeled a motion for appeal, it appears that Plaintiff only seeks

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reconsideration by this Court. The motion for reconsideration is deemed submitted. Local Rule

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230(l).

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II.

Motion for Reconsideration

Plaintiff filed his motion for reconsideration 12 days after entry of judgment. A motion

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for reconsideration, such as that filed by Plaintiff, is treated as a motion to alter or amend

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judgment under Federal Rule of Civil Procedure 59(e) if it is filed within 28 days after the entry

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of judgment. United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992); Fed. R. Civ.

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P. 59(e).

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Relief pursuant to Rule 59(e) is appropriate when there are highly unusual circumstances,

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the district court is presented with newly discovered evidence, the district court committed clear

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error, or a change in controlling law intervenes. School Dist. No. 1J, Multnomah County, Oregon

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v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). To avoid being frivolous, such a motion must

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provide a valid ground for reconsideration. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500,

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505 (9th Cir.1986).

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Here, Plaintiff seeks reconsideration based “new evidence” that he was recently

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diagnosed with “Some Form of Conce[n]tration/Inability to focus disorder.” (ECF No. 29, p. 1.)

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Plaintiff asks the court to look at his redraft and consider it on the merits. Plaintiff also asserts

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that he was unable to receive any law library assistance or guidance because of an inability to

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attend the law library due to his mobility impairment. Plaintiff avers that he has acquired help to

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draft an appropriate claim.

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The Court has considered Plaintiff’s moving papers, but does not find any basis

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supporting relief under Rule 59(e). Plaintiff’s reference to his recent diagnosis and the recent
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acquisition of help is unavailing for several reasons. First, Plaintiff had multiple opportunities to

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amend his complaint in this action. Second, if needed, Plaintiff could have requested extensions

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of time to amend his complaint in order to access the law library or to obtain assistance. Third,

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Plaintiff has not provided any supporting evidence regarding mental illness or other limiting

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mental health conditions. Fourth, and finally, Plaintiff has not presented the Court with any

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proposed amended complaint. Accordingly, Plaintiff’s motion to alter or amend the judgment

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shall be denied.

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III.

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Based on the foregoing reasons, Plaintiff’s motion for reconsideration is HEREBY

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Conclusion and Order

DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 2, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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