McRae v. Dikran et al

Filing 70

ORDER DENYING 61 Motion for Reconsideration signed by Magistrate Judge Gary S. Austin on 6/12/2020. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL SCOTT McRAE,

12

Plaintiff,

13
14

vs.

1:16-cv-01066-NONE-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF Nos. 60.)

BAIRAMIAN DIKRAN, et al.,

15

Defendants.

16
17
18

I.

BACKGROUND

19

Michael Scott McRae (“Plaintiff”) is a former federal prisoner proceeding pro se and in

20

forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403

21

U.S. 388 (1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on

22

March 9, 2018, against defendants Dr. Dikran Bairamian, Dr. Kevin Cuong Nguyen, and Dr.

23

David Betz (collectively, “Defendants”), for inadequate medical care under the Eighth

24

Amendment and state law claims for medical malpractice and medical battery. (ECF No. 14.)

25

On May 14, 2020, Plaintiff filed a motion for reconsideration of the court’s April 27,

26

2020 order. (ECF No. 61.) On May 29, 2020, defendant Dr. David Betz filed an opposition to

27

the motion. (ECF No. 67.) Plaintiff has not filed a reply. Plaintiff’s motion for reconsideration

28

is now before the court. Local Rule 230(l).
1

1

II.

MOTION FOR RECONSIDERATION

2

A.

3

The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d

4

1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992).

5

Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin

6

Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.

7

1983) (en banc). When filing a motion for reconsideration, Local Rule 230(j) requires a party to

8

show the “new or different facts or circumstances claimed to exist which did not exist or were

9

not shown upon such prior motion, or what other grounds exist for the motion.” L.R. 230(j).

Legal Standard

10

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

11

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

12

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

13

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

14

and citations omitted, and “[a] party seeking reconsideration must show more than a

15

disagreement with the court’s decision, and recapitulation . . . ” of that which was already

16

considered by the court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d

17

1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly

18

convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist.

19

v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in

20

part on other grounds, 828 F.2d 514 (9th Cir. 1987).
Plaintiff’s Motion

21

B.

22

Plaintiff requests reconsideration of the court’s order of April 27, 2020, which struck

23

Plaintiff’s motion for leave to amend filed on March 30, 2020, for lack of Plaintiff’s signature.

24

(ECF No. 52.) Plaintiff argues that the order should be vacated because he promptly corrected

25

the omission of his signature when the court called it to his attention.

26

In opposition, defendant Betz argues that Plaintiff does not present any evidence or any

27

authority to show that the court committed clear error, or that there was an intervening change in

28

the law after he filed his March 30, 2020, motion for leave to amend. Defendant Betz also argues
2

1

that granting Plaintiff’s motion for reconsideration is futile because Plaintiff’s March 30, 2020,

2

motion was procedurally improper and could not have been granted even if it was signed.

3

Defendant Betz contends that Plaintiff’s motion for leave to amend was deficient because he did

4

not state the legal grounds for amending the complaint or include a proposed amended complaint.

5

C.

6

Defendant Betz’s arguments have merit, and Plaintiff has not set forth facts or law of a

7

strongly convincing nature in his motion for reconsideration to induce the court to reverse its

8

prior decision. Therefore, the motion for reconsideration shall be denied.

9
10

Discussion and Conclusion

Accordingly, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s
motion for reconsideration, filed on May 14, 2020, is DENIED.

11
12
13
14

IT IS SO ORDERED.
Dated:

June 12, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3