Leos v. Rasey et al

Filing 71

ORDER Denying Plaintiff's 63 Motion for Reconsideration with Prejudice, signed by Chief Judge Lawrence J. O'Neill on 4/6/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES LEOS,

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Case No. 1:14-cv-02029-LJO-JLT (PC)
Plaintiff,

v.

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
WITH PREJUDICE

RASEY, et al.,
(Doc. 63)

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Defendants.

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Plaintiff, James Leos, is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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I. Background

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On July 27, 2016, the Magistrate Judge filed Findings and Recommendations (F&R) to

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grant Defendants’ motion for summary judgment on Plaintiff’s negligence claim against

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Defendant Rasey under California law since as untimely under the California Tort Claims Act,

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Cal. Gov’t Code § 945.6, but to deny their motion on Plaintiff’s claims under § 1983, finding that

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Plaintiff had exhausted the administrative remedies that were available to him before he filed suit.

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(Doc. 43.) This was served on the parties that same day and contained notice that any objections

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to it were to be filed within twenty-one days. (Id.) Both sides filed timely objections. (Docs. 44,

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45.) An order issued adopting the F&R in full on September 16, 2016 (“the Order Adopting”).

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(Doc. 47.)

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On October 26, 2016, Plaintiff filed a motion for reconsideration of the Order Adopting
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asserting that dismissal of his negligence claim under California law against Defendant Rasey

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was erroneous as, under California law, his filing of this action was timely which was denied.

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(Docs. 53, 61.) Plaintiff has now filed a second motion for reconsideration on this issue. (Doc.

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63.) Defendants filed an opposition. (Doc. 66.) Despite lapse of more than the allowed time,

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Plaintiff has not filed a reply. The motion is deemed submitted. L.R. 230(l).

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II. Reconsideration Standards

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Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n motion and upon

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such terms as are just, the court may relieve a party . . . from a final judgment, order, or

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proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence could not have been discovered in

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time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by

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an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.”

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Motions under Rule 60(b) “must be made within a reasonable time -- and for reasons (1), (2), and

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(3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted)

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(addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both

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injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation

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omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff 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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previously, “what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown” at the time the substance of the order which is objected to was considered.

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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,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original).

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Plaintiff fails to show newly discovered evidence, clear error, or an intervening change in the

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controlling law, Marlyn Nutraceuticals, 571 F.3d at 880, and the Court declines to spend its scarce

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resources to further explain an issue that it has now addressed multiple times in this action.

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In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the Findings and Recommendation, which issued on July 27, 2016 (Doc. 43) and

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Order Adopting which issued on September 16, 2016 (Doc. 47), which dismissed Plaintiff’s

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negligence claim under California law against Defendant Rasey, as well as the order denying

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Plaintiff’s previous motion for reconsideration thereof which issued on February 13, 2017 (Doc.

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61), to be supported by the record and proper analysis.

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III. Order

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Accordingly, Plaintiff’s motion for reconsideration, filed on March 3, 2017 (Doc. 63), is

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DENIED with prejudice. Any further motions for reconsideration from Plaintiff on the issue of
exhaustion will be STRICKEN from the docket.
IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill _____

April 6, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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