Hill v. Katavich et al

Filing 30

ORDER DENYING 29 Plaintiff's Motion for Reconsideration signed by Chief Judge Lawrence J. O'Neill on 10/17/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY HILL,
Plaintiff,

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Case No. 1:15-cv-00631-LJO-JLT (PC)

v.
KATAVICH, et al.,

ORDER DENYING PLAINTIFF'S
MOTION FOR RECONSIDERATION
FED. R. CIV. P. 60(b)(1)
(Doc. 29)

Defendants.

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BACKGROUND
Plaintiff, Tony Hill, 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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On August 20, 2015, the Magistrate Judge issued a Findings and Recommendations (“the

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F&R”) to: (1) dismiss this action based on Plaintiff's failure to pay the filing fee since he is not

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eligible to proceed in forma pauperis under 28 U.S.C. §1915(g) due to having at least three

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strikes prior to the filing of this action and failing to show that he was in imminent danger of

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serious physical injury at the time he filed suit; and (2) to deny Plaintiff's requests for injunctive

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relief via transfer to another facility. (Doc. 12.) This was served on Plaintiff and contained

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notice that objections to the F&R were due within thirty days. (Id.) Plaintiff filed a motion in

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opposition to the F&R which was construed as his objection(s). (Doc. 13.) The Order Adopting

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the Findings and Recommendations found that dismissal was appropriate since Plaintiff was
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ineligible to proceed in forma pauperis and had failed to pay the filing fee. (Doc. 18.)
On October 7, 2015, Plaintiff filed a notice of appeal that was processed to the Ninth

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Circuit that same day. (Docs. 20, 21.) On October 13, 2015, Plaintiff filed a motion for

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reconsideration of this Court’s order dismissing the action and entering judgment against Plaintiff

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which was denied. (Docs. 23, 25.) The Ninth Circuit dismissed Plaintiff’s appeal on March 1,

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2016 (Doc. 27), and denied Plaintiff’s request to reinstate his appeal on January 19, 2017 (Doc.

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28). Plaintiff filed another motion to reopen this case on October 16, 2017. (Doc. 29.) For the

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following reasons, Plaintiff’s motion is DENIED.

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DISCUSSION
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
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).
Plaintiff’s October 16, 2017 motion is untimely since filed more than a year after

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judgment was entered against him in this case. (Compare Docs. 18, 19, & 25.) Further, in his

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motion, Plaintiff once again asserts that, because of filing this action, he has been the target of

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acts of retaliation by prison staff. (Doc. 29.) Plaintiff does not now, nor has he ever shown that

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the acts he complains of in this action amount to placing him in imminent danger. In fact, the

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incidents that Plaintiff complains of in the present motion occurred in 2017. Plaintiff raises

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neither evidence nor law that has not previously been considered and there is no other basis upon

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which it would be just to relieve him from judgment that has been entered in this action. As

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stated in the order denying Plaintiff’s previous motion for reconsideration, while the retaliatory

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acts Plaintiff claims to be experiencing from having filed this case may constitute imminent

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danger under 28 U.S.C. §1915(g) for a separate proceeding, they suffice neither to resurrect, nor

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preserve this action.
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 following to be supported by the record and proper analysis: the Findings and

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Recommendation upon which Plaintiff was found to be ineligible to proceed in forma pauperis

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(Doc. 3) and the Order Adopting it (Doc. 10) which resulted in the requirement for Plaintiff to

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pay the filing fee in full; the Findings and Recommendation to dismiss the action when Plaintiff's

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failed to pay the filing fee (Doc. 12); and the Order Adopting it that resulted in dismissal of this

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action and entry of judgment.

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ORDER
Accordingly, Plaintiff’s motion for relief from judgment, filed on October 16, 2017 (Doc.

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29), is HEREBY DENIED and any objections based thereon are OVERRULED. Further motions

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for reconsideration on the dismissal and judgment against Plaintiff in this action will not be

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entertained and will be stricken upon filing.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

October 17, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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