Green v. Paramo

Filing 32

ORDER Denying Petitioner's 27 Motion for Reconsideration, signed by District Judge Lawrence J. O'Neill on 9/11/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN GREEN,

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CASE NO. 1:14-CV-1648-LJO-SMS
Petitioner,

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v.

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DANIEL PARAMO, Warden,

ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION

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(Doc. 27)

Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, brings a motion for

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reconsideration of an order adopting the findings and recommendations recommending dismissal

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of his petition for writ of habeas corpus (Docs. 21, 25). Doc. 27. Concurrently with his motion for

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reconsideration, Petitioner filed a notice of appeal, which has been processed. Docs. 28, 30.

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I.

JURISDICTION
The filing of a notice of appeal “confers jurisdiction on the court of appeals and divests the

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district court of its control over those aspects of the case involved in the appeal.” Griggs v.

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Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982). However, “[i]f a party files a

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notice of appeal after the court announces or enters a judgment -- but before it disposes of any

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motion listed in Rule 4(a)(4)(A) -- the notice becomes effective to appeal a judgment or order, in

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whole or in part, when the order disposing of the last such remaining motion is entered.” Fed. R.

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App. P. 4(a)(4)(B)(i). It is not explicitly clear what would occur when a motion for reconsideration

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is filed concurrently with a notice of appeal. However, district courts are treating a notice of

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appeal filed concurrently with a motion for reconsideration as, in effect, suspended; therefore,

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allowing the district court to consider the motion. PJY Enters., LLC v. Kaneshiro, 2015 U.S. Dist.

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LEXIS 85091, *5-6 (D. Haw. June 30, 2015); Tidwell v. Spearman, 2015 U.S. Dist. LEXIS 14801,

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*2 (E.D. Cal. Feb. 5, 2015); Flores v. Hartley, 2010 U.S. Dist. LEXIS 120698, *1 (E.D. Cal. Nov.

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13, 2010). Hence, the Court will consider Petitioner’s motion.

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II.

RULE 59(e)

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“Although the Federal Rules of Civil Procedure do not specifically allow for a motion for

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reconsideration, the court treats a motion for reconsideration filed within [28] days of the entry of

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judgment as one to alter or amend the judgment under [R]ule 59(e).” Sierra Club v. Tri-State

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Generation & Transmission Ass'n, 173 F.R.D. 275, 287 (D. Colo. 1997). Plaintiff’s motion for

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reconsideration was filed on August 5, 2015, and included a verification and proof of service by

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mail dated July 20, 2015. Doc. 27. His motion was filed within 28 days after entry of judgment on

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July 2, 2015 when applying the prison mailbox rule. See Schroeder v. McDonald, 55 F.3d 454,

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459 (9th Cir. 1995)(“An incarcerated pro se litigant completes service under Fed.R.Civ.P. 5(b)

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upon submission to prison authorities for forwarding to the party to be served.”). Treatment under

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Rule 59(e) is appropriate.

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A Rule 59(e) motion may be brought to alter or amend a judgment within 28 days of a

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judgment being filed. Fed. R. Civ. P. 59(e). There are four basic grounds upon which the courts

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have granted a motion for reconsideration under Rule 59(e): “(1) if such motion is necessary to

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correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is

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necessary to present newly discovered or previously unavailable evidence; (3) if such motion is

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necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening

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change in controlling law.” Allstate Insurance Co. v. Herron, 634 F. 3d 1101, 1111 (9th Cir.

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2011). Reconsideration under Rule 59(e) is “an extraordinary remedy, to be used sparingly in the

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interest of finality and conservation of judicial resources.” Kona Enterprises, Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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Petitioner claims to have “incorporated several new finding, not in previous petition” and

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“restructured his arguments, which are exact same issues in previous petition.” Doc. 27. However,

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each “new finding” was already raised and addressed in the original petition. Petitioner failed to
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put forward any argument that would warrant reconsideration of the order of dismissal under Rule

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59(e). Petitioner has not asserted the dismissal order was erroneous in any particular way, nor that

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he has discovered new evidence that was not previously available to him. Likewise, he has failed

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to establish manifest injustice or that the law has changed. In sum, Petitioner failed to present the

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Court with evidence of extraordinary circumstances.

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III.

ORDER
Accordingly, the motion for reconsideration is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

September 11, 2015

UNITED STATES DISTRICT JUDGE
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