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)

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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

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