Vera v. Gipson

Filing 39

ORDER Denying Motion For Reconsideration (ECF No. 37 ), signed by District Judge Anthony W. Ishii on 3/19/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO VERA ,

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Plaintiff,

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CASE NO. 1:13-cv-00870-AWI-MJS (PC)
ORDER
DENYING
RECONSIDERATION

MOTION

FOR

v.
(ECF No. 37)
CONNIE GIPSON,

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Defendant.

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I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 28 U.S.C. § 1983. Plaintiff initiated this action by filing a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court directed the

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habeas proceeding be converted to a 42 U.S.C. § 1983 civil rights action. (ECF No. 14.)

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Plaintiff’s first amended complaint was dismissed for failure to state a claim, but

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he was given leave to amend. (ECF No. 17.) On June 24, 2014, the Court screened

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Plaintiff’s second amended complaint and again dismissed for failure to state a claim.

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(ECF No. 29.) Plaintiff was afforded thirty days in which to file an amended pleading.

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(Id.) Plaintiff requested a sixty day extension of time (ECF No. 31) and, on July 28, 2014,

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the Court granted Plaintiff a thirty day extension of time to file his amended pleading.

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(ECF No. 32.) The thirty day deadline passed without Plaintiff filing an amended

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pleading or seeking an extension of time to do so.

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On September 11, 2014, the Court ordered Plaintiff to show cause why the action
should not be dismissed. (ECF No. 33.) Plaintiff filed no response.

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On October 27, 2014, the Magistrate Judge assigned to the action issued findings

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and a recommendation to dismiss the action for failure to obey a court order and failure

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to prosecute. (ECF No. 34.) Plaintiff filed no objections. The undersigned adopted the

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findings and recommendation on November 20, 2014 (ECF No. 35), judgment was

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entered thereon (ECF NO. 36), and the action was closed.

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Before the Court is Plaintiff’s December 8, 2014 “Motion to Amend the Findings”

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(ECF No. 37), which the Court construes as a motion for reconsideration. Additionally,

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on February 26, 2015, Plaintiff lodged a proposed third amended complaint. (ECF No.

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38.)

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from

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an order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an

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equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

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(internal quotations marks and citation omitted).

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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,

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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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“A motion for reconsideration may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised in earlier litigation.” Id.

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Moreover, “recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

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requires that a party seeking reconsideration show that “new or different facts or

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

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

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III.

ANALYSIS

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Plaintiff states that, on November 2, 2014, he filed a motion for a sixty day

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extension of time in which to respond to the findings and recommendations. (ECF No.

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37.)

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No November 2, 2014 motion for extension of time was received by the Court.

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Plaintiff’s motion for reconsideration does not state the basis for seeking an extension of

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time. Nor does Plaintiff explain his failure to timely obey the Court’s order that he file an

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amended complaint (ECF Nos. 29 & 32) or his failure to respond to the order to show

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cause (ECF No. 33). Accordingly, Plaintiff has not provided a basis for reconsideration.

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IV.

CONCLUSION AND ORDER

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Based on the foregoing, Plaintiff’s motion for reconsideration (ECF No. 37) is

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HEREBY DENIED. His lodged third amended complaint will not be filed, and the case

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remains closed.

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IT IS SO ORDERED.
Dated: March 19, 2015
SENIOR DISTRICT JUDGE

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