Gray v. Johnson et al

Filing 270

ORDER DENYING Motions for Reconsideration signed by Magistrate Judge Gary S. Austin on 9/11/2017. (Sant Agata, S)

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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

vs.
ROMERO, et al.,

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(ECF Nos. 179, 191, 208, 209, 210, 211, 213,
225, 234, 238, 255, 256.)

Defendants.

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I.

Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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BACKGROUND

pursuant to 42 U.S.C. § 1983. This case was filed on September 12, 2013. (ECF No. 1.)

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On April 5, 2017, May 26, 2017, June 21, 2017, July 24, 2017, August 7, 2017, and

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August 28, 2017, Plaintiff filed objections to, motions for reconsideration of, and a motion to

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strike orders issued by the undersigned Magistrate Judge. (ECF Nos. 179, 191, 208, 209, 210,

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211, 213, 225, 234, 238, 255, 256.) The court construes Plaintiff’s objections and motion to

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strike as motions for reconsideration.

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II.

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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Id. (internal quotation marks and citation omitted).

In seeking

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

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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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Plaintiff requests reconsideration of the findings and recommendations issued on

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January 18, 2017, the order denying Plaintiff’s motions as premature, issued on March 2, 2017,

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the order striking the Fifth Amended Complaint issued on May 4, 2017, and the order denying

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Plaintiff’s motion for a protective order and motion to compel, issued on August 14, 2017.

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(ECF Nos. 158, 175, 206, 246.)

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The court has reviewed Plaintiff’s motions for reconsideration and finds that Plaintiff

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has not set forth facts or law of a strongly convincing nature to induce the court to reverse its
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prior decisions. Therefore, the motions for reconsideration shall be denied. Moreover, no

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further objections, motions to strike, or motions for reconsideration concerning the findings and

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recommendations issued on January 18, 2017, the order denying Plaintiff’s motions as

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premature, issued on March 2, 2017, the order striking the Fifth Amended Complaint issued on

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May 4, 2017, or the order denying Plaintiff’s motion for a protective order and motion to

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compel, issued on August 14, 2017, shall be considered by the court.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motions for reconsideration, filed on March 13, 2017, April 5, 2017,

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May 26, 2017, June 21, 2017, July 24, 2017, August 7, 2017, August 28, 2017,

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and September 9, 2016, are DENIED; and

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2.

No further objections, motions to strike, or motions for reconsideration

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concerning the findings and recommendations issued on January 18, 2017 (ECF

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No. 158), the order denying Plaintiff’s motions as premature, issued on March 2,

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2017 (ECF No. 179), the order striking the Fifth Amended Complaint issued on

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May 4, 2017 (ECF No. 206), or the order denying Plaintiff’s motion for a

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protective order and motion to compel, issued on August 14, 2017 (ECF No.

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246), shall be considered by the court.

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IT IS SO ORDERED.
Dated:

September 11, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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