Nielsen v. Lopez

Filing 41

ORDER denying 37 Motion to Reconsider denial of further leave to amend signed by District Judge Dale A. Drozd on 1/5/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY NIELSEN,,

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Plaintiff,

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No. 1: 14-cv-01608-DAD-MJS (PC)

v.
JOSE LOPEZ, et al.,

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Defendants.

ORDER DENYING MOTION TO
RECONSIDER DENIAL OF FURTHER
LEAVE TO AMEND
(ECF No. 37)

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Plaintiff has moved for reconsideration of the assigned magistrate judge’s October 9, 2015

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order denying his motion to further amend his complaint. For the reasons set forth below, the

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motion for reconsideration will be denied.

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I.

PROCEDURAL HISTORY

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Plaintiff is civil detainee proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. (ECF No. 1 & 8.) This action was originally filed on September 8,

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2014, in the Sacramento Division of the U.S. District Court for the Eastern District of California

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and was transferred to the Fresno Division of the court on October 15, 2014. (ECF No. 4.)

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This matter proceeds on plaintiff’s amended complaint. (ECF No. 27.) The assigned magistrate

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judge screened that complaint and found that it stated a cognizable excessive force claim against

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Defendant Lopez. (ECF No. 28.) The magistrate judge also recommended that: (1) plaintiff

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proceed on the excessive force claim against Defendant Lopez; (2) all other claims asserted in the
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amended complaint and all other named defendants be dismissed; and (3) plaintiff’s motion for

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interlocutory appeal be denied as moot. (Id.) On October 7, 2015, the then assigned district

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judge adopted those findings and recommendations. (ECF No. 30.)

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On October 2, 2015, plaintiff filed a motion to amend. (ECF No. 29.) On October 9,

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2015, the Magistrate Judge denied that motion. (ECF No. 31.) Plaintiff has now filed a second

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motion to amend his amended complaint, seeking review by the assigned district judge. (ECF

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No. 37 at 4.) The court construes plaintiff’s latest motion as a motion to reconsider the magistrate

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judges’ denial of his earlier motion to amend.

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II.

MOTION FOR RECONSIDERATION OF PLAINTIFF’S MOTION TO AMEND

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A.

Legal Standard

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Federal Rule of Civil Procedure 60(b)(1) allows the Court to relieve a party from an order

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due to “mistake, inadvertence, surprise, or excusable neglect.” In seeking reconsideration of an

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order, Local Rule 230(j) requires a party to show “what new or different facts or circumstances

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are claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion.”
“A motion for reconsideration should not be granted, absent highly unusual

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

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

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Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), and “‘[a] party seeking

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reconsideration must show more than a disagreement with the Court’s decision, and

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‘recapitulation . . .’” of that which was already considered by the court in rendering its decision.

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United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (quoting

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Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D. N.J. 1992)).

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B.

Analysis
Plaintiff seeks to amend his amended complaint to add the phrase “and then violently

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slammed plaintiff face-first down into the tiled concrete floor” and to correct a diacritic error in

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the spelling of a defendant’s name. (ECF No. 38.)

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The minor corrections and/or additions plaintiff seeks to make do not present a basis for

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reconsideration of the magistrate judge’s order denying further leave to amend. The assigned

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magistrate judge correctly denied plaintiff’s motion to amend because his requested modifications

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do not add nor detract from the substance of the allegations of his amended complaint. Simply

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put, plaintiff’s requested amendments are unnecessary. Plaintiff has not shown clear error or

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other meritorious grounds for relief from the magistrate judge’s order.

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III.

For the reasons stated above, plaintiff’s motion to amend (ECF No. 37) construed as a

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CONCLUSION

motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated:

January 5, 2016
DALE A. DROZD
UNITED STATES DISTRICT JUDGE

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