Harris v. German et al
Filing
107
ORDER DENYING 105 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 10/31/2020. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVONTE HARRIS,
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Plaintiff,
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vs.
1:15-cv-01462-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF No. 86.)
HUMBERTO GERMAN, et al.,
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Defendants.
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I.
BACKGROUND
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Devonte Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the First
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Amended Complaint filed by Plaintiff on March 14, 2016, against defendants Correctional
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Officer (C/O) Humberto German, C/O Philip Holguin, and C/O R. Burnitzki (collectively,
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“Defendants”), for use of excessive force in violation of the Eighth Amendment; and against
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defendant C/O Philip Holguin for retaliation in violation of the First Amendment. (ECF No. 8.)
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On December 6, 2019, the court issued an order denying Plaintiff’s motion for imposition
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of discovery sanctions on Defendants. (ECF No. 84.) On October 29, 2020, Plaintiff filed a
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motion for reconsideration of the order. (ECF No. 105.)
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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 reasonable
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diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3)
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fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
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opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R.
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Civ. P. 60(b). Under Rule 60, a motion for “relief from a final judgment, order or proceeding”
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may be filed within a “reasonable time,” but must be filed “no more than a year after the entry of
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the judgment or order or the date of the proceeding” for reasons (1), (2), and (3). Fed. R. Civ. P.
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60(c)(1). Rule 60(b)(6) “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). The
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moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id.
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(internal quotation marks and citation omitted). In seeking reconsideration of an order, Local
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Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed
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to exist which did not exist or were not shown upon such prior motion, or what other grounds
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exist for the motion.”
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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,” Marlyn Nutraceuticals,
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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks
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and citations omitted, and “[a] party seeking reconsideration must show more than a
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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already
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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d
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1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly
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convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist.
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v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in
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part on other grounds, 828 F.2d 514 (9th Cir. 1987).
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Plaintiff has not set forth facts or law of a strongly convincing nature in his motion for
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reconsideration to induce the Court to reverse its prior decision. Therefore, the motion for
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reconsideration shall be denied.
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III.
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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for
reconsideration, filed on October 29, 2020, is DENIED.
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IT IS SO ORDERED.
Dated:
October 31, 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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