Davis v. Wilson et al

Filing 11

ORDER DENYING 10 Motion for Reconsideration, signed by Magistrate Judge Erica P. Grosjean on 11/22/16. (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

1:16-cv-00605-EPG (PC)

KELLY DAVIS,
12
Plaintiff,
13
v.

ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF NO. 10)

14
R. WILSON AND J. LEWIS,
15
Defendants.
16
17
18
19

Kelly Davis (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

20

pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on April 29,

21

2016, together with a motion for preliminary injunctive relief. (ECF Nos. 1 & 3). The complaint

22

has not yet been screened. On August 19, 2016, the Court issued an order denying Plaintiff’s

23

motion for preliminary injunctive relief. (ECF No. 9). On September 1, 2016, Plaintiff filed a

24

motion for reconsideration (ECF No. 10), which is now before the Court.

25

Plaintiff states that the complaint has not yet been screened, and that the defendants have

26

yet to respond to the complaint (Plaintiff hired a process server to serve the defendants).

27

However, Plaintiff believes that the Court should reconsider its ruling on his motion for

28

preliminary injunctive relief because “Plaintiff is suffering now.” (Id. at p. 3).
1

1
2

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.

3
4
5
6
7
8
9
10

The Court is sympathetic to Plaintiff’s plight. However, Plaintiff has failed to show that

11

he meets any of the above-mentioned reasons for granting relief from the order denying his

12

motion for a preliminary injunction. It appears that nothing has changed since the Court ruled on

13

that motion. No defendants have made an appearance, and it is still not yet time for service of the

14

complaint. Therefore, the Court still lacks personal jurisdiction over the defendants and cannot

15

issue an order requiring them to take any action. Plaintiff argues that the case of Elrod v. Burns,

16

427 U.S. 347 (1976), allows the Court to exercise jurisdiction. However, Elrod is not applicable

17

to the present situation because in Elrod there was no indication that that the injunction at issue

18

was granted before the complaint was served and the defendants appeared. (Id.).

19
20

Accordingly, it is ORDERED that Plaintiff’s motion for reconsideration is DENIED.
IT IS SO ORDERED.

21
22

Dated:

November 22, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
2