Gray v. Johnson et al

Filing 293

ORDER DENYING Plaintiff's Motions for Reconsideration 190 , 204 , 230 , 232 , 233 signed by District Judge Dale A. Drozd on 12/5/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANA GRAY,

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Plaintiff,

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No. 1:13-cv-01473-DAD-GSA
ORDER DENYING PLAINTIFF’S MOTIONS
FOR RECONSIDERATION

v.
(Doc. Nos. 190, 204, 230, 232, 233.)
V. ROMERO,

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Defendant.

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I.

Background

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

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pursuant to 42 U.S.C. § 1983. The complaint in this action was filed back on September 12,

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2013. (Doc. No. 1.) Plaintiff has, among various other submissions, filed multiple motions

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requesting reconsideration of the orders of this court.

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II.

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Background
On April 5, 2017 and May 2, 2017, plaintiff filed motions for reconsideration. (Doc. Nos.

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190, 204.) The April 5, 2017 motion requests that the court accept plaintiff’s belated objections

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to the magistrate judge’s findings and recommendations that had already been adopted by the

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undersigned on March 28, 2017.1 (Doc. No. 190.) Plaintiff’s May 2, 2017 motion requests

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The court construes plaintiff’s request as another motion seeking reconsideration of the
undersigned’s March 28, 2017 order. (Doc. No. 184.)
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reconsideration of the court’s March 28, 2017 order adopting the magistrate judge’s January 18,

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2017 findings and recommendations and granting both defendant Rebel’s motion to dismiss and

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the motion for judgment on the pleadings filed on behalf of defendants Ziomek and Mundunuri.

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(Doc. No. 204.) On July 24, 2017, plaintiff requested a ruling on this motion for reconsideration

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that she had filed May 2, 2017. (Doc. No. 232.) On July 26, 2017, defendant Rebel filed a

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response. (Doc. No. 236.)

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On July 24, 2017, plaintiff filed what she inaccurately characterized as “objections” to the

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undersigned’s July 10, 2017 order adopting the magistrate judge’s findings and recommendations

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and denying plaintiff’s April 5, 2017 motion for preliminary injunction. (Doc. No. 230.) On July

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24, 2017, plaintiff filed a motion requesting that the court vacate its order of July 10, 2017 (Doc.

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No. 228) and grant her motion for preliminary injunction filed on April 5, 2017 (Doc. No. 192).

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(Doc. No. 233.) On July 26, 2017, defendant Rebel filed a response to plaintiff’s filing. (Doc.

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No. 236.) The court will also construe plaintiff’s “objections” and motion as motions for

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reconsideration of the court’s July 10, 2017 order denying her motion for preliminary injunction.

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III.

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

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

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could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud

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(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

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opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R.

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Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only [in] extraordinary circumstances….” Harvest v. Castro, 531

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F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party

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“must demonstrate both injury and circumstances beyond his control….” Id. (internal quotation

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marks and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires a

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party to show “what new or different facts or circumstances are claimed to exist which did not

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exist or were not shown upon such prior motion, or what other grounds exist for the motion.”

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A motion for reconsideration is appropriate if the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the controlling

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law. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009). “A party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation…” of that which was already considered by the court in rendering its

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decision.” United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp.

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656, 665 (E.D. Cal. 1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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The court has thoroughly reviewed plaintiff’s various motions for reconsideration and

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finds therein no facts or law of a convincing nature which would cause the court to reconsider any

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of the challenged prior decisions. Therefore, plaintiff’s motions for reconsideration are denied.

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Moreover, plaintiff is forewarned that her filing of repetitive and groundless motions, including

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motions for reconsideration of nearly every order issued, is unnecessarily delaying resolution of

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this long-pending action.

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IV.

Conclusion

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For the reasons set forth above:

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1.

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Plaintiff’s motions for reconsideration of the court’s orders issued on March 28,
2017 and July 10, 2017 (Doc. Nos. 190, 204, 230, 233) are denied;

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2.

No further motions for reconsideration concerning defendant Rebel’s motion to

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dismiss (Doc. No. 57), the defendants Mundunuri’s and Viomek’s motions for

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judgment on the pleadings (Doc. No. 122), or plaintiff’s motion for preliminary

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injunction (Doc. No. 228) shall be considered by this court; and

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Plaintiff’s continued filing of frivolous or repetitive motions may result in the
imposition of sanctions including possible terminating sanctions.

IT IS SO ORDERED.
Dated:

December 5, 2017
UNITED STATES DISTRICT JUDGE

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