Davis v. Wilson et al
Filing
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ORDER DENYING 10 Motion for Reconsideration, signed by Magistrate Judge Erica P. Grosjean on 11/22/16. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:16-cv-00605-EPG (PC)
KELLY DAVIS,
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Plaintiff,
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v.
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF NO. 10)
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R. WILSON AND J. LEWIS,
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Defendants.
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Kelly Davis (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action
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pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on April 29,
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2016, together with a motion for preliminary injunctive relief. (ECF Nos. 1 & 3). The complaint
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has not yet been screened. On August 19, 2016, the Court issued an order denying Plaintiff’s
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motion for preliminary injunctive relief. (ECF No. 9). On September 1, 2016, Plaintiff filed a
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motion for reconsideration (ECF No. 10), which is now before the Court.
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Plaintiff states that the complaint has not yet been screened, and that the defendants have
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yet to respond to the complaint (Plaintiff hired a process server to serve the defendants).
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However, Plaintiff believes that the Court should reconsider its ruling on his motion for
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preliminary injunctive relief because “Plaintiff is suffering now.” (Id. at p. 3).
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Federal Rule of Civil Procedure 60(b) governs grounds for relief from an order:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that justifies relief.
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The Court is sympathetic to Plaintiff’s plight. However, Plaintiff has failed to show that
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he meets any of the above-mentioned reasons for granting relief from the order denying his
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motion for a preliminary injunction. It appears that nothing has changed since the Court ruled on
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that motion. No defendants have made an appearance, and it is still not yet time for service of the
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complaint. Therefore, the Court still lacks personal jurisdiction over the defendants and cannot
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issue an order requiring them to take any action. Plaintiff argues that the case of Elrod v. Burns,
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427 U.S. 347 (1976), allows the Court to exercise jurisdiction. However, Elrod is not applicable
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to the present situation because in Elrod there was no indication that that the injunction at issue
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was granted before the complaint was served and the defendants appeared. (Id.).
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Accordingly, it is ORDERED that Plaintiff’s motion for reconsideration is DENIED.
IT IS SO ORDERED.
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Dated:
November 22, 2016
/s/
UNITED STATES MAGISTRATE JUDGE
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