Solomon v. Castaneda et al

Filing 37

ORDER DENYING 32 Motion for Reconsideration signed by Magistrate Judge Michael J. Seng on 9/12/2017. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

VINCENT SOLOMON,

12

Plaintiff,

13
14

CASE No. 1:15-cv-01801-MJS (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(ECF No. 32)
I. CASTANEDA, et al.,

15

Defendants.

16
17
18
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

19
20

rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate

21

Judge jurisdiction. (ECF No. 10.) No other parties have appeared in the action. Before

22

the Court is Plaintiff’s July 24, 2017 “Notice of Reconsideration.” (ECF No. 32.)

23

I.

Procedural History

24

Plaintiff initiated this action on November 30, 2015. (ECF No. 1.) On August 8,

25

2016, the assigned District Judge screened Plaintiff’s amended complaint and concluded

26

that it stated cognizable Eighth Amendment excessive force claims against Defendants

27

Castaneda, Press, and Sanchez. Plaintiff’s other claims were dismissed for failure to

28

state a cognizable claim – some with leave to amend and some without leave to amend.

1

The Court also dismissed certain defendants without leave to amend. (ECF No. 16.) The

2

complaint itself was dismissed and Plaintiff was granted thirty (30) days to file a second

3

amended complaint. (Id.)

4

Plaintiff proceeded to file four motions for extension of time to file a second

5

amended complaint. (ECF Nos. 17, 19, 21, 24.) The motions were granted, but in

6

granting the fourth motion, filed January 30, 2017 (ECF No. 24), the Court warned

7

Plaintiff that further extensions of time were unlikely. (ECF No. 25.) Plaintiff was ordered

8

to file an amended complaint but also was given the option of notifying the Court of his

9

willingness to proceed only on the claims previously found cognizable. (Id.)

10

Plaintiff then failed to timely file a second amended complaint, notify the Court of

11

his willingness to proceed only on the cognizable claims or otherwise respond to the

12

Court’s order. (Id.) Accordingly, on April 20, 2017, the Court issued an order to show

13

cause for failure to obey a court order and failure to prosecute. (ECF No. 26.) Plaintiff

14

then filed a fifth motion for extension of time on May 11, 2017. (ECF No. 27.) The Court

15

denied the motion and ordered Plaintiff to, within twenty-one days, either file an

16

amended complaint or advise the Court whether he wished to proceed on the excessive

17

force claim previously found cognizable. (ECF No. 28.) Plaintiff was advised that the

18

failure to timely respond would result in dismissal of the action for failure to obey a court

19

order and failure to prosecute. (Id.) The twenty-one day deadline passed without Plaintiff

20

either filing an amended complaint, stating his willingness to proceed only on cognizable

21

claims, or otherwise responding to the Court’s order. Accordingly, on June 28, 2017, the

22

action was dismissed.
On July 24, 2017, Plaintiff filed a notice of appeal and, with it, a “Notice of

23
24

Reconsideration.”

25

II.

Legal Standard

26

“A motion for reconsideration should not be granted, absent highly unusual

27

circumstances, unless the district court is presented with newly discovered evidence,

28

committed clear error, or if there is an intervening change in the controlling law.” Marlyn
2

1

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).

2

“A motion for reconsideration may not be used to raise arguments or present evidence

3

for the first time when they could reasonably have been raised in earlier litigation.” Id.

4

Moreover, “recapitulation of the cases and arguments considered by the court before

5

rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

6

Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

7

Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

8

requires that a party seeking reconsideration show that “new or different facts or

9

circumstances are claimed to exist which did not exist or were not shown upon such

10

prior motion, or what other grounds exist for the motion . . . .”

11

Additionally, Rule 60(b) allows the Court to relieve a party from a final judgment or

12

order on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

13

discovered evidence . . . ; (3) fraud . . . , misrepresentation, or misconduct by an

14

opposing party; (4) the judgment is void; (5) the judgment has been satisfied . . . ; it is

15

based on an earlier judgment that has been reversed or vacated; or applying it

16

prospectively is no longer equitable; or (6) any other reason that justifies relief.” Fed. R.

17

Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

18

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

19

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

20

citation omitted). The moving party bears the burden of demonstrating that relief under

21

Rule 60(b) is appropriate. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988).

22

III.

Discussion

23

Plaintiff’s motion reiterates the arguments presented in his fifth motion for

24

extension of time. (ECF No. 27.) These arguments have been considered and rejected

25

by the Court. (ECF No. 28.) Plaintiff’s only other argument is that his claim is meritorious

26

and he is likely to prevail. However, this does not excuse his failure to comply with Court

27

orders or his failure to prosecute this matter by either filing an amended complaint or

28

electing to prosecute only the cognizable claim. He does not present a basis for
3

1

reconsideration or relief from judgment.

2

IV.

3
4

Conclusion and Order
Based on the foregoing, Plaintiff’s motion for reconsideration is HEREBY

DENIED.

5
6
7

IT IS SO ORDERED.
Dated:

September 12, 2017

/s/

8

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4