Jackson v. Palombo et al

Filing 22

ORDER Denying Plaintiff's 21 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 07/31/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD JACKSON,

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Plaintiff,

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v.
MIKE PALOMBO, et al.,

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Defendants.

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1:13-cv-00986-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF No. 21)

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I.

Procedural Background

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Plaintiff Richard Jackson (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 4, 2014, the Magistrate

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Judge dismissed Plaintiff’s original complaint, filed on June 27, 2013, with leave to amend. In

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order to determine whether or not the action was barred by the favorable termination rule,

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Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct. 1242 (2005), the Magistrate Judge expressly

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directed Plaintiff to address, if he could do so in good faith, his failure to allege that his time

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credits had been restored or that his disciplinary conviction had been overturned or otherwise

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invalidated. (ECF No. 13, p. 4.)

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On June 16, 2014, Plaintiff filed a first amended complaint. On June 19, 2014, the

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Magistrate Judge screened the complaint and issued Findings and Recommendations that this

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action be dismissed, without prejudice, based on Plaintiff’s failure to comply with the Court’s

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screening order. In particular, the Magistrate Judge found that Plaintiff had failed to comply
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with the direction to allege whether or not his time credits had been restored or that his

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disciplinary conviction was overturned or otherwise invalidated. (ECF No. 17.) Plaintiff

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objected to the Magistrate Judge’s Findings and Recommendations on July 3, 2014.

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On July 15, 2014, following consideration of Plaintiff’s objections, the undersigned

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adopted the Findings and Recommendations in full and dismissed this action without prejudice.

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(ECF No. 19.) On the same date, the Clerk of the Court entered judgment. (ECF No. 20.)

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On July 28, 2014, Plaintiff filed the instant motion for reconsideration. (ECF No. 21.)

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II.

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Plaintiff filed his motion for reconsideration 13 days after entry of judgment. A motion

Motion to Alter or Amend the Judgment

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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 requests that his case continue, asserting that he has difficulty

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understanding, he has disabilities and his writing differs from his thinking. Plaintiff also states

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that he never knew he could “file for credits or have [a] disciplinary conviction overturned.”

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(ECF No. 21.) Plaintiff has not provided the Court with a valid ground to alter or amend the

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judgment, such as newly discovered evidence, clear error or a change in the controlling law.

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Moreover, Plaintiff essentially has confirmed that he cannot allege, in good faith, that his

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good time credits were restored or that his prison disciplinary conviction was overturned or

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otherwise invalidated. As Plaintiff’s claims in this action are barred by the favorable termination

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rule, the Court finds no basis to alter or amend the judgment. Wilkinson, 544 U.S. at 81-82.
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III.

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For the reasons stated, Plaintiff’s motion to alter or amend the judgment, filed on July 28,

Conclusion and Order

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2014, is DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

July 31, 2014

UNITED STATES DISTRICT JUDGE

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