Gray v. Johnson et al

Filing 325

ORDER DENYING 324 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 4/3/2018. (Jessen, A)

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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 MOTION FOR
RECONSIDERATION

vs.
(ECF No. 324.)
ROMERO, et al.,

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Defendants.

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I.

BACKGROUND

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Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this case on September 12,

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2013. (ECF No. 1.)

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On April 2, 2018, Plaintiff filed objections to the court’s order of March 19, 2018.

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(ECF No. 324.) The court construes Plaintiff’s objections as a motion for reconsideration of

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the court’s order.

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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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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).
Plaintiff requests reconsideration of the court’s order issued on March 19, 2018, which

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denied Plaintiff’s motion for appointment of a medical expert. (ECF No. 319.)

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

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not set forth facts or law of a strongly convincing nature to induce the court to reverse its prior

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decision. Therefore, the motion for reconsideration shall be denied.

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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

reconsideration, filed on April 2, 2018, is DENIED.

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IT IS SO ORDERED.
Dated:

April 3, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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