Gray v. Johnson et al

Filing 185

ORDER DENYING 177 & 183 Motions for Reconsideration, signed by Magistrate Judge Gary S. Austin on 3/30/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA GRAY,

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Plaintiff,

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1:13-cv-01473-DAD-GSA-PC
ORDER DENYING MOTIONS FOR
RECONSIDERATION
(ECF Nos. 177, 183.)

vs.
ROMERO, et al.,

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Defendants.

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I.

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BACKGROUND
Plaintiff is a prisoner proceeding pro se and in forma pauperis with this civil rights

action pursuant to 42 U.S.C. § 1983.

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On March 15, 2017, Plaintiff filed objections to the court’s order of March 2, 2017,

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(ECF No. 177), and on March 27, 2017, Plaintiff filed objections to the court’s order of

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February 3, 2017. (ECF No. 183.)

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reconsideration of the court’s orders.

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II.

The court construes Plaintiff’s objections as motions for

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .”

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exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation 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(k) requires Plaintiff to show “what new or different

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facts or 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.”

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 district court is presented with newly discovered evidence, committed

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

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

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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III.

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DISCUSSION
Plaintiff requests reconsideration of the court’s orders of February 3, 2017, and March

2, 2017.

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The court’s order of February 3, 2017, denied three of Plaintiff’s motions: (1) motion

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for a 90-day extension of the discovery deadline, filed on January 26, 2017 (ECF No. 159); (2)

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motion for leave to supplement the complaint, filed on February 1, 2017 (ECF No. 162), and

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(3) motion for a 90-day extension of the discovery deadline, filed on February 1, 2017 (ECF

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No. 163).

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The court’s order of March 2, 2017, denied three of Plaintiff’s other motions: (1)

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motion for 90-day extension of time to submit Fifth Amended Complaint, filed on February 9,

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2017 (ECF No. 166), (2) motion to supplement the complaint with submission of Fifth

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Amended Complaint, filed on February 16, 2017 (ECF No. 171), and (3) motion to amend and

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supplement the complaint, filed on February 22, 2017 (ECF No. 172).

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All six of Plaintiff’s motions listed above were denied as premature because at the time

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Plaintiff filed the motions, findings and recommendations were pending recommending that

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Defendant Rebel’s motion to dismiss be granted, with leave to amend; that Defendant Ziomek’s

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motion for judgment on the pleadings be granted, with leave to amend; and that Defendant

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Mundunuri’s motion for judgment on the pleadings be granted. The court could not properly

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consider Plaintiff’s six motions until after the resolution of the findings and recommendations.

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Therefore, Plaintiff’s six motions were premature.

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The court has thoroughly reviewed Plaintiff’s objections and finds that she has not set

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forth facts or law of a strongly convincing nature in her motions for reconsideration to induce

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the court to reverse its prior decisions. Therefore, Plaintiff’s motions for reconsideration shall

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be denied.

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IV.

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CONCLUSION
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motions for

reconsideration, filed on March 15, 2017, and March 27, 2017, are DENIED.

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IT IS SO ORDERED.
Dated:

March 30, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE