Bettencourt v. Parks et al

Filing 18

ORDER DENYING Plaintiff's Renewed Motion to Set Hearing on Speedy Trial and Notice to Commence Action for Depositions 14 , 16 , signed by District Judge Dale A. Drozd on 9/14/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,

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No. 1:16-cv-00150-DAD-BAM (PC)

v.
L. PARKER, et al.,

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ORDER DENYING PLAINTIFF’S
RENEWED MOTION TO SET HEARING ON
SPEEDY TRIAL AND NOTICE TO
COMMENCE ACTION FOR DEPOSITIONS

Defendants.
(Doc. Nos. 14, 16)

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Plaintiff Gary Ray Bettencourt is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on February

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2, 2016. (Doc. No. 1.)

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I.

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On August 1, 2016, plaintiff filed a motion entitled, “Motion to Set Hearing on Speedy Trial;

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Notice to Commence Action for Depositions,” requesting that this matter be scheduled for a jury

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trial and that discovery commence. (Doc. No. 11.) On August 4, 2016, the magistrate judge to

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whom this matter was referred denied that motion. (Doc. No. 12.) The magistrate judge

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explained that to the extent plaintiff attempted to invoke Sixth Amendment speedy trial rights,

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such rights do not apply to this civil action. (Id. at 2.) Further, plaintiff’s requests to begin

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discovery and set a trial in this matter are premature, because his complaint has not yet been

Introduction

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screened pursuant to 28 U.S.C. § 1915A. As a result, the court has not yet determined if

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plaintiff’s complaint, or any portion of it, is subject to dismissal as frivolous, malicious, for

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failure to state a claim upon which relief may be granted, or for seeking monetary relief from a

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defendant who is immune to such relief, as required by statute. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii). Finally, the magistrate judge explained that plaintiff’s complaint would be

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screened in due course.

Currently before the court is plaintiff’s renewed motion for this matter to be scheduled for

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a jury trial and for discovery to commence, originally dated August 12, 2016, but subsequently

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dated August 23, 2016, when it was resubmitted with copies of a summons plaintiff has drafted.

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(Doc. Nos. 14 and 16.) The motion, as resubmitted to the court, consists of a copy of plaintiff’s

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August 1, 2016 motion with exhibits, a copy of his complaint with exhibits, a copy of summonses

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plaintiff has drafted, and a verification form. Plaintiff directs the verification form to the

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undersigned, and states that he objects to the magistrate judge’s prior order, and renews his

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motion to set a trial and commence discovery in this matter. (Id. at 100.) The court construes this

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renewed motion filed by plaintiff as a motion to reconsider the magistrate judge’s August 4, 2016

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order denying plaintiff’s previous motion, brought by plaintiff pursuant to Federal Rule of Civil

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Procedure 60(b)(6).

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II.

Motion for Reconsideration

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Federal Rule of Civil Procedure 60(b)(6) allows the court to relieve a party from an order

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for any reason that justifies relief. Rule 60(b)(6) “is to be ‘used sparingly as an equitable remedy

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to prevent 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) (quoting Latshaw v. Trainer Wortham &

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Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). The moving party “must demonstrate both injury

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and circumstances beyond his control.” Latshaw, 452 F.3d at 1103. In seeking reconsideration of

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an order, Local Rule 230(j) requires a party to show “what new or different facts or circumstances

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are claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds 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 . . . court is presented with newly discovered evidence, committed clear

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error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v.

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Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), and “ ‘[a] party seeking

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reconsideration must show more than a disagreement with the Court’s decision, and

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‘recapitulation . . .’ ” of that which was already considered by the court in rendering its decision.

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United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (quoting

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Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D.N.J. 1992)).

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In this case, plaintiff has presented no grounds for reconsideration of the magistrate

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judge’s order. Plaintiff’s requests for a trial date to be set and discovery to commence are

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premature, as the magistrate judge explained. Plaintiff’s complaint must first be screened and the

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court must determine whether the complaint may be served and that litigation may continue,

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before an order permitting discovery and scheduling deadlines in this matter may be issued.

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There was no error in the magistrate judge’s previous order that requires reconsideration.

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III.

Accordingly, plaintiff’s renewed motion for this matter to be scheduled for a jury trial and

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Conclusion

for discovery to commence, dated August 23, 2016, (Doc. Nos. 14 and 16.), is denied.

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IT IS SO ORDERED.
Dated:

September 14, 2016
UNITED STATES DISTRICT JUDGE

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