Aubert v. Madruga et al

Filing 34

ORDER DENYING Request for Reconsideration 33 , signed by Magistrate Judge Gary S. Austin on 7/29/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESS’NN A. AUBERT,

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Plaintiff,

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vs.

1:13-cv-01659-AWI-GSA-PC
ORDER DENYING REQUEST FOR
RECONSIDERATION
(ECF No. 33.)

E. MADRUGA, et al.,

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Defendants.

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I.

RELEVANT PROCEDURAL HISTORY
Ess’nn A. Aubert (APlaintiff@) is a state prisoner proceeding pro se and in forma

pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983.

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This case now proceeds with Plaintiff’s original Complaint filed on October 15, 2013,

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against defendants Correctional Officer (C/O) B. Hobbs and C/O E. Madruga (“Defendants”),

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for use of excessive force in violation of the Eighth Amendment.1 (ECF No. 1.)

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On July 24, 2015, the court issued an order granting Defendants’ motion to compel,

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filed on May 4, 2015, and motion to modify the Discovery and Scheduling Order, filed on July

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On May 21, 2014, the court issued an order dismissing all other claims and defendants from
this action, for Plaintiff’s failure to state a claim. (ECF No. 11.)
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16, 2015. (ECF No. 30.) On July 28, 2015, Plaintiff filed an opposition to Defendants’ motion

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to modify the Discovery and Scheduling Order. (ECF No. 33.) The court construes Plaintiff’s

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opposition as a request for reconsideration of the July 24, 2015 order.

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II.

REQUEST 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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Here, Plaintiff has not set forth facts or law of a strongly convincing nature in his

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request for reconsideration to induce the court to reverse its prior decision. Therefore, the

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request for reconsideration shall be denied.

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III.

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

reconsideration, filed on July 28, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

July 29, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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