Kinder v. Merced County

Filing 28

ORDER Denying 22 Motion for Reconsideration, signed by Magistrate Judge Michael J. Seng on 2/6/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOBBY LEE KINDER, JR.,

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Plaintiff,

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CASE No. 1:16-cv-01311-MJS (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(ECF No. 22)
MERCED COUNTY,

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Defendant.

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I.

Procedural History

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

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

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Judge jurisdiction. No other parties have appeared in the action.

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Plaintiff’s complaint was dismissed for failure to state a claim, but he was given

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leave to amend. (ECF No. 9.) His first amended complaint was dismissed because it

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only contained allegations that were not properly joined in this action. He again was

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given leave to amend. (ECF No. 11.) His initial attempt at a second amended complaint

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was stricken because it also contained only allegations that were not properly joined in

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this action. A separate action was opened and the stricken complaint was filed therein.

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Finally, his re-filed second amended complaint was dismissed for failure to state a claim.

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(ECF No. 19.) Further leave to amend was denied, and the action was closed. (Id.)

Before the Court are Plaintiff’s objections to the screening order, which the Court

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construes as a motion for reconsideration.1 (ECF No. 22.)

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II.

Legal Standard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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) (internal quotations marks and

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Plaintiff has appealed. (ECF No. 23.) The Court nonetheless has jurisdiction to deny the motion for
reconsideration. Fed. R. Civ. P. 62.1(a).

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

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

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III.

Discussion

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Plaintiff’s motion does not present a basis for relief.

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Plaintiff asks for extra time to obtain the name of a police officer who tazed him.

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This claim was dismissed because Plaintiff alleged only municipal liability and yet he

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failed to state a claim on that basis. Furthermore, to the extent Plaintiff wishes to

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proceed against an individual police officer, this claim would appear to be improperly

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joined. Fed. R. Civ. P. 20.

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Plaintiff asks for extra time to subpoena a police report. It is unclear how such

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report would have affected the Court’s analysis of Plaintiff’s claims. It appears related to

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the tazing incident.

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Plaintiff proposes to reduce the amount of monetary relief he seeks in this action.

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This was not a basis for the dismissal of the complaint. Altering the amount of relief

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would not affect the Court’s conclusions.

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Plaintiff asks for permission to re-file his state law claims. The Court declined to

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exercise jurisdiction over Plaintiff’s state law claims. The dismissal order does not affect

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Plaintiff’s ability to bring such claims in state court.

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Lastly, Plaintiff re-alleges allegations that the Court determined were not

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cognizable. Plaintiff presents no basis for reconsidering the Court’s prior ruling.

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IV.

Conclusion and Order

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Plaintiff’s objections, construed as a motion for reconsideration, do not present a

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basis for reconsideration or for relief from judgment. Accordingly, the motion for

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reconsideration is HEREBY DENIED.
IT IS SO ORDERED.

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Dated:

February 6, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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