Todd v. Lopez

Filing 9

ORDER DENYING Motion for Reconsideration 8 , signed by District Judge Anthony W. Ishii on 2/26/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE TODD,

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Plaintiff,

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vs.

1:14-cv-01858-AWI-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(Doc. 8.)

J. LOPEZ,

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Defendant.

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I.

RELEVANT PROCEDURAL HISTORY

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George Todd (APlaintiff@) is a state prisoner proceeding pro se with this civil rights

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action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action

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on November 3, 2014. (Doc. 1.) On November 24, 2014, the court issued an order requiring

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Plaintiff to file an amended complaint within thirty days. (Doc. 2.) The thirty-day time period

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passed and Plaintiff did not file an amended complaint or otherwise respond to the court’s

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order. On January 13, 2015, findings and recommendations were issued, recommending that

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this case be dismissed for Plaintiff’s failure to obey a court order. (Doc. 5.) Plaintiff was

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permitted twenty days in which to file objections to the findings and recommendations. (Id.)

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The twenty-day time period passed, and Plaintiff did not file objections or otherwise respond to

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the findings and recommendations. On February 12, 2015, the district judge adopted the

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findings and recommendations and dismissed this case for failure to obey a court order. (Doc.

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6.)
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On February 23, 2015, Plaintiff filed untimely objections to the findings and

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recommendations and a request for extension of time to submit an amended complaint. (Doc.

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8.) The court construes Plaintiff’s objections as a motion for reconsideration of the court’s

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order dismissing this case.

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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). Under Rule 60(b)(6), the moving party “must demonstrate both injury and

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circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted). In

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seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown

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upon such prior motion, or what other grounds exist for the motion.” “A party seeking

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reconsideration must show more than a disagreement with the Court’s decision . . . .” U.S. v.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must

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set forth facts or law of a strongly convincing nature to induce the court to reverse its prior

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decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal.

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1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Plaintiff argues that he was unable to file his amended complaint because he was

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transferred from Kern Valley State Prison to Solano State Prison on November 26, 2014, and it

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takes two to three weeks for his mail to be forwarded to him. Plaintiff also asserts that on

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February 6, 2015, he was denied access to the law library.

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Plaintiff’s arguments are unpersuasive. First, according to Plaintiff’s explanation, he

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was unable to comply with the court’s order because of a delay in delivery of the mail to him.

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However, Plaintiff never informed the Court of his change of address, despite his obligation

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under Local Rule 108 to do so. Had Plaintiff followed Local Rule 108, there would not have

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been a delay. Plaintiff offers no explanation for why he did not inform the Court of his change

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of address. Second, Plaintiff’s assertion that he was denied access to the law library on

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February 6, 2015, does not explain his failure to file an amended complaint in December 2014

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or January 2015. Finally, there is no evidence before the court that Plaintiff used due diligence

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and requested an extension of time to comply with the court’s order.

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Plaintiff has not presented sufficient facts that warrant reconsideration. Plaintiff’s
motion for reconsideration will be denied.

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ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for
reconsideration, filed on February 23, 2015, is DENIED.

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IT IS SO ORDERED.
Dated: February 26, 2015
SENIOR DISTRICT JUDGE

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