Howard v. Chapa, et al.

Filing 12

ORDER Denying Motion For Reconsideration (Doc. 11 ), signed by Magistrate Judge Gary S. Austin on 4/29/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHANDELL L. HOWARD,

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Plaintiff,

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vs.

1:14-cv-00928-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 11.)

E. CHAPA, et al.,

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Defendants.

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I.

BACKGROUND

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Chandell L. Howard (APlaintiff@) is a state prisoner proceeding pro se and in forma

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

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Complaint commencing this action on June 17, 2014. (Doc. 1.) On July 17, 2014, Plaintiff

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consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. 636(c), and no

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other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of

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the Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3).
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On April 2, 2015, the court issued an order denying Plaintiff’s motion for immediate

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service of process and for the imposition of sanctions against prison officials. (Doc. 9.) On

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April 27, 2015, Plaintiff filed objections to the court’s delay in reviewing his case, which the

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court construes as a motion for reconsideration of the court’s order issued on April 2, 2015.

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(Doc. 9.)

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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).

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Plaintiff objects to the court’s abuse of discretion in the failure to process and review

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his Complaint. Plaintiff complains that he has been transferred to Pelican Bay State Prison and

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subjected to retaliation. Plaintiff also states that “[a]lthough [he] declined the consent of a

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Magistrate, the District Judge (Gary Austin) assigned one anyway (GSA).” (Objections, Doc

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11 at 2 ¶3.) Plaintiff also alleges that the court “order[ed] the Defendants to show cause and

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respond, [and] as a result the court has created default in the prosecution of the herein civil

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rights § 1983 complaint.” (Id. at 4 ¶9.)

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Plaintiff’s assertions that he declined Magistrate Judge jurisdiction, and that the court

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ordered the defendants in this case to “show cause and respond” are untrue. (Court Record.)

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With respect to Plaintiff’s allegations of retaliation against him at Pelican Bay State Prison,

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Plaintiff was advised in the court’s order of April 2, 2015, that the court lacks jurisdiction to

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grant relief to Plaintiff. See Zepeda v. United States Immigration Service, 753 F.2d 719, 727

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(9th Cir. 1985); City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983);

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Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S.

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464, 471, 102 S.Ct. 752, 757-58 (1982). Plaintiff has not set forth facts or law of a strongly

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convincing nature in his motion for reconsideration 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.

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

reconsideration, filed on April 27, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

April 29, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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