Solomon v. Castaneda et al
Filing
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ORDER DENYING 32 Motion for Reconsideration signed by Magistrate Judge Michael J. Seng on 9/12/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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VINCENT SOLOMON,
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Plaintiff,
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CASE No. 1:15-cv-01801-MJS (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION
v.
(ECF No. 32)
I. CASTANEDA, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate
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Judge jurisdiction. (ECF No. 10.) No other parties have appeared in the action. Before
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the Court is Plaintiff’s July 24, 2017 “Notice of Reconsideration.” (ECF No. 32.)
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I.
Procedural History
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Plaintiff initiated this action on November 30, 2015. (ECF No. 1.) On August 8,
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2016, the assigned District Judge screened Plaintiff’s amended complaint and concluded
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that it stated cognizable Eighth Amendment excessive force claims against Defendants
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Castaneda, Press, and Sanchez. Plaintiff’s other claims were dismissed for failure to
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state a cognizable claim – some with leave to amend and some without leave to amend.
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The Court also dismissed certain defendants without leave to amend. (ECF No. 16.) The
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complaint itself was dismissed and Plaintiff was granted thirty (30) days to file a second
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amended complaint. (Id.)
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Plaintiff proceeded to file four motions for extension of time to file a second
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amended complaint. (ECF Nos. 17, 19, 21, 24.) The motions were granted, but in
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granting the fourth motion, filed January 30, 2017 (ECF No. 24), the Court warned
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Plaintiff that further extensions of time were unlikely. (ECF No. 25.) Plaintiff was ordered
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to file an amended complaint but also was given the option of notifying the Court of his
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willingness to proceed only on the claims previously found cognizable. (Id.)
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Plaintiff then failed to timely file a second amended complaint, notify the Court of
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his willingness to proceed only on the cognizable claims or otherwise respond to the
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Court’s order. (Id.) Accordingly, on April 20, 2017, the Court issued an order to show
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cause for failure to obey a court order and failure to prosecute. (ECF No. 26.) Plaintiff
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then filed a fifth motion for extension of time on May 11, 2017. (ECF No. 27.) The Court
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denied the motion and ordered Plaintiff to, within twenty-one days, either file an
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amended complaint or advise the Court whether he wished to proceed on the excessive
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force claim previously found cognizable. (ECF No. 28.) Plaintiff was advised that the
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failure to timely respond would result in dismissal of the action for failure to obey a court
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order and failure to prosecute. (Id.) The twenty-one day deadline passed without Plaintiff
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either filing an amended complaint, stating his willingness to proceed only on cognizable
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claims, or otherwise responding to the Court’s order. Accordingly, on June 28, 2017, the
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action was dismissed.
On July 24, 2017, Plaintiff filed a notice of appeal and, with it, a “Notice of
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Reconsideration.”
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II.
Legal Standard
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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,
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committed clear error, or if there is an intervening change in the controlling law.” Marlyn
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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
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“A motion for reconsideration may not be used to raise arguments or present evidence
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for the first time when they could reasonably have been raised in earlier litigation.” Id.
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Moreover, “recapitulation of the cases and arguments considered by the court before
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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands
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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony
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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)
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requires that a party seeking reconsideration show that “new or different facts or
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circumstances are claimed to exist which did not exist or were not shown upon such
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prior motion, or what other grounds exist for the motion . . . .”
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Additionally, Rule 60(b) allows the Court to relieve a party from a final judgment or
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order on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
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discovered evidence . . . ; (3) fraud . . . , misrepresentation, or misconduct by an
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opposing party; (4) the judgment is void; (5) the judgment has been satisfied . . . ; it is
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based on an earlier judgment that has been reversed or vacated; or applying it
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prospectively is no longer equitable; or (6) any other reason that justifies relief.” Fed. R.
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Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent
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manifest injustice and is to be utilized only where extraordinary circumstances” exist.
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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and
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citation omitted). The moving party bears the burden of demonstrating that relief under
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Rule 60(b) is appropriate. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988).
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III.
Discussion
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Plaintiff’s motion reiterates the arguments presented in his fifth motion for
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extension of time. (ECF No. 27.) These arguments have been considered and rejected
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by the Court. (ECF No. 28.) Plaintiff’s only other argument is that his claim is meritorious
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and he is likely to prevail. However, this does not excuse his failure to comply with Court
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orders or his failure to prosecute this matter by either filing an amended complaint or
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electing to prosecute only the cognizable claim. He does not present a basis for
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reconsideration or relief from judgment.
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IV.
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Conclusion and Order
Based on the foregoing, Plaintiff’s motion for reconsideration is HEREBY
DENIED.
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IT IS SO ORDERED.
Dated:
September 12, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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