Walker v. Wechsler, et al.

Filing 18

ORDER DENYING Plaintiff's 17 Motion for Reconsideration, signed by Magistrate Judge Jennifer L. Thurston on 12/29/2016. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFF WALKER, 12 13 Case No. 1:16-cv-01417-JLT (PC) Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION v. (Doc. 17) 14 15 Dr. WECHSLER, et. al., Defendants. 16 17 Plaintiff filed a motion for reconsideration of the order screening his First Amended 18 Complaint. In that prior order, the Court permitted him to proceed only on his claim of excessive 19 force against Nurse Domiano. (Doc. 17.) After reviewing Plaintiff’s motion, it is clear that it 20 must be denied since he fails to show new evidence or clear error. 21 Rule 60(b) of the Federal Rules of Civil Procedure provides that A[o]n motion and upon 22 such terms as are just, the court may relieve a party . . . from a final judgment, order, or 23 proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 24 (2) newly discovered evidence that, with reasonable diligence could not have been discovered in 25 time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by 26 an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.@ 27 Motions under Rule 60(b) "must be made within a reasonable time -- and for reasons (1), (2), and 28 (3) no more than a year after the entry of the judgment or order or the date of the proceeding." 1 1 Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest 2 injustice and is to be utilized only where extraordinary circumstances” exist. Harvest v. Castro, 3 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing 4 reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both injury and 5 circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted). 6 Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or different 7 facts or circumstances are claimed to exist which did not exist or were not shown" previously, 8 "what other grounds exist for the motion,” and “why the facts or circumstances were not shown" 9 at the time the substance of the order which is objected to was considered. “A motion for reconsideration should not be granted, absent highly unusual 10 11 circumstances, unless the [ ] court is presented with newly discovered evidence, committed clear 12 error, or if there is an intervening change in the controlling law,” and it “may not be used to raise 13 arguments or present evidence for the first time when they could reasonably have been raised 14 earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 15 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original). 16 Plaintiff bases his motion for reconsideration on his assertion that he is proceeding on 17 similar issues in three other actions “with success and others pending” and identifies his other 18 actions as “Walker v. Sgt. F. Villalobos, Walker v. Dr. Scott, and Walker v. Mohadjer.” (Doc. 19 17.) Thus, Plaintiff asserts that his pleading defects in this action can be cured. (Id.) However, 20 whether Plaintiff has been allowed to proceed on allegations in other actions, does not 21 demonstrate he can correct the defects in his pleading in this action. Furthermore, though Plaintiff has filed numerous actions in this District,1 he has no 22 23 actions, pending or closed, named “Walker v. Sgt. F. Villalobos” or “Walker v. Dr. Scott.” 24 Though he was the plaintiff in an action titled “Walker v. Mohadjer,” contrary to Plaintiff’s 25 assertion, that action was dismissed both for his failure to exhaust administrative remedies prior 26 to filing suit and for failure to state any cognizable claims. See Walker v. Mohadjer, et al., 2:13- 27 1 28 Judicial notice may be taken of undisputed matters of public record, including documents on file in federal or state courts. Fed.Rules Evid.Rule 201, 28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (2012). 2 1 cv-01193-WBS-AC (PC), Docs. 125, 128. Plaintiff provides no other basis upon which he seeks 2 reconsideration of the screening order and the Court finds none. 3 In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this 4 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 5 Court finds that the order which allowed Plaintiff to proceed only on a claim of excessive force 6 against Defendant Nurse Domiano and dismissed all other claims and Defendants, which issued 7 on December 15, 2016 (Doc. 16), to be supported by the record and proper analysis. 8 9 Accordingly, the Court ORDERS that Plaintiff’s motion for reconsideration, filed on December 27, 2016, (Doc. 17), is DENIED. 10 11 12 IT IS SO ORDERED. Dated: December 29, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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