Hill v. CDCR, et al.

Filing 35

ORDER Denying 33 Motion for Reconsideration, signed by Magistrate Judge Gary S. Austin on 3/24/14. (Verduzco, M)

1
2
3
4
5
6
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

TONY LEE HILL,

12

Plaintiff,

13
14

vs.

1:14-cv-00002-LJO-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 33.)

CDCR, et al.,

15

Defendants.

16
17

I.

BACKGROUND

18

Tony Lee Hill (APlaintiff@) is a state prisoner in the custody of the California

19

Department of Corrections and Rehabilitation (CDCR), proceeding pro se and in forma

20

pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

21

commencing this action on January 2, 2014. (Doc. 1.) On January 21, 2014, Plaintiff filed the

22

First Amended Complaint. (Doc. 14.) On February 3, 2014, Plaintiff filed a motion for leave

23

to amend the complaint. (Doc. 16.) The court granted Plaintiff’s motion, and the Second

24

Amended Complaint was filed on February 3, 2014. (Docs. 19, 20.) On March 3, 2014 and

25

March 10, 2014, Plaintiff filed motions to amend the complaint, which are pending. (Docs. 24,

26

27.) On March 6, 2014, the court issued an order revoking Plaintiff’s in forma pauperis status

27

under 28 U.S.C. § 1915(g) and ordered Plaintiff to pay the $400.00 filing fee for this action in

28

full within thirty days. (Doc. 26.)

On March 21, 2014, Plaintiff filed a motion for reconsideration of the court’s March 6,

1
2

2014 order. (Doc. 33.) Plaintiff’s motion for reconsideration is now before the court.

3

II.

MOTION FOR RECONSIDERATION

4

Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

5

justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

6

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

7

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

8

omitted). The moving party “must demonstrate both injury and circumstances beyond his

9

control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

10

an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

11

circumstances are claimed to exist which did not exist or were not shown upon such prior

12

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

13

“A motion for reconsideration should not be granted, absent highly unusual

14

circumstances, unless the district court is presented with newly discovered evidence, committed

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

Discussion

25

Plaintiff disagrees with the court’s finding in the March 6, 2014 order finding that he

26

was not in imminent danger at the time he filed this action. Plaintiff argues that his life is

27

presently in danger because Correctional Officer Barajas, who tampered with Plaintiff’s food

28

for over five months, is now working in the gun tower outside of the building where Plaintiff is

1

housed. Plaintiff argues that his complaint alleges that “defendants have served him reduced

2

portions of food, rotten fruit, and bread bitten by a rodent,” and food tampering can lead to

3

something else more dangerous. (Doc. 33 at 2:1-9.)

4

Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court

5

to reverse its prior decision. Therefore, Plaintiff’s motion for reconsideration shall be denied.

6

III.

7

8

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that

Plaintiff=s

motion

for

reconsideration, filed on March 21, 2014, is DENIED.

9
10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
26
27
28

IT IS SO ORDERED.
Dated:

March 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE