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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES LEOS, 10 11 12 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) 13 Defendants. 14 15 Plaintiff, James Leos, is a state prisoner proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 17 Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. 18 I. Background 19 On July 27, 2016, the Magistrate Judge filed Findings and Recommendations (F&R) to 20 grant Defendants’ motion for summary judgment on Plaintiff’s negligence claim against 21 Defendant Rasey under California law since as untimely under the California Tort Claims Act, 22 Cal. Gov’t Code § 945.6, but to deny their motion on Plaintiff’s claims under § 1983, finding that 23 Plaintiff had exhausted the administrative remedies that were available to him before he filed suit. 24 (Doc. 43.) This was served on the parties that same day and contained notice that any objections 25 to it were to be filed within twenty-one days. (Id.) Both sides filed timely objections. (Docs. 44, 26 45.) An order issued adopting the F&R in full on September 16, 2016 (“the Order Adopting”). 27 (Doc. 47.) 28 On October 26, 2016, Plaintiff filed a motion for reconsideration of the Order Adopting 1 1 asserting that dismissal of his negligence claim under California law against Defendant Rasey 2 was erroneous as, under California law, his filing of this action was timely which was denied. 3 (Docs. 53, 61.) Plaintiff has now filed a second motion for reconsideration on this issue. (Doc. 4 63.) Defendants filed an opposition. (Doc. 66.) Despite lapse of more than the allowed time, 5 Plaintiff has not filed a reply. The motion is deemed submitted. L.R. 230(l). 6 II. Reconsideration Standards 7 Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n motion and upon 8 such terms as are just, the court may relieve a party . . . from a final judgment, order, or 9 proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 10 (2) newly discovered evidence that, with reasonable diligence could not have been discovered in 11 time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by 12 an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.” 13 Motions under Rule 60(b) “must be made within a reasonable time -- and for reasons (1), (2), and 14 (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” 15 Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest 16 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 17 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) 18 (addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both 19 injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation 20 omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or 21 different facts or circumstances are claimed to exist which did not exist or were not shown" 22 previously, “what other grounds exist for the motion,” and “why the facts or circumstances were 23 not shown” at the time the substance of the order which is objected to was considered. 24 “A motion for reconsideration should not be granted, absent highly unusual 25 circumstances, unless the district court is presented with newly discovered evidence, committed 26 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 27 raise arguments or present evidence for the first time when they could reasonably have been 28 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 2 1 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 2 original). 3 Plaintiff fails to show newly discovered evidence, clear error, or an intervening change in the 4 controlling law, Marlyn Nutraceuticals, 571 F.3d at 880, and the Court declines to spend its scarce 5 resources to further explain an issue that it has now addressed multiple times in this action. 6 In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this 7 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 8 Court finds the Findings and Recommendation, which issued on July 27, 2016 (Doc. 43) and 9 Order Adopting which issued on September 16, 2016 (Doc. 47), which dismissed Plaintiff’s 10 negligence claim under California law against Defendant Rasey, as well as the order denying 11 Plaintiff’s previous motion for reconsideration thereof which issued on February 13, 2017 (Doc. 12 61), to be supported by the record and proper analysis. 13 III. Order 14 Accordingly, Plaintiff’s motion for reconsideration, filed on March 3, 2017 (Doc. 63), is 15 16 17 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. 18 19 Dated: /s/ Lawrence J. O’Neill _____ April 6, 2017 UNITED STATES CHIEF DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 3

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