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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFF WALKER,

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Case No. 1:16-cv-01417-JLT (PC)
Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

v.
(Doc. 17)

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Dr. WECHSLER, et. al.,
Defendants.

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Plaintiff filed a motion for reconsideration of the order screening his First Amended

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Complaint. In that prior order, the Court permitted him to proceed only on his claim of excessive

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force against Nurse Domiano. (Doc. 17.) After reviewing Plaintiff’s motion, it is clear that it

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must be denied since he fails to show new evidence or clear error.

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Rule 60(b) of the Federal Rules of Civil Procedure provides that A[o]n motion and upon

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such terms as are just, the court may relieve a party . . . from a final judgment, order, or

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proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence could not have been discovered in

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time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by

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an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.@

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Motions under Rule 60(b) "must be made within a reasonable time -- and for reasons (1), (2), and

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(3) no more than a year after the entry of the judgment or order or the date of the proceeding."
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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances” exist. Harvest v. Castro,

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531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing

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reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both injury and

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circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted).

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Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown" previously,

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"what other grounds exist for the motion,” and “why the facts or circumstances were not shown"

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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

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circumstances, unless the [ ] court is presented with newly discovered evidence, committed clear

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error, or if there is an intervening change in the controlling law,” and it “may not be used to raise

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arguments or present evidence for the first time when they could reasonably have been raised

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earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original).

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Plaintiff bases his motion for reconsideration on his assertion that he is proceeding on

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similar issues in three other actions “with success and others pending” and identifies his other

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actions as “Walker v. Sgt. F. Villalobos, Walker v. Dr. Scott, and Walker v. Mohadjer.” (Doc.

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17.) Thus, Plaintiff asserts that his pleading defects in this action can be cured. (Id.) However,

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whether Plaintiff has been allowed to proceed on allegations in other actions, does not

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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

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actions, pending or closed, named “Walker v. Sgt. F. Villalobos” or “Walker v. Dr. Scott.”

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Though he was the plaintiff in an action titled “Walker v. Mohadjer,” contrary to Plaintiff’s

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assertion, that action was dismissed both for his failure to exhaust administrative remedies prior

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to filing suit and for failure to state any cognizable claims. See Walker v. Mohadjer, et al., 2:13-

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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).

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cv-01193-WBS-AC (PC), Docs. 125, 128. Plaintiff provides no other basis upon which he seeks

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reconsideration of the screening order and the Court finds none.

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In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds that the order which allowed Plaintiff to proceed only on a claim of excessive force

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against Defendant Nurse Domiano and dismissed all other claims and Defendants, which issued

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on December 15, 2016 (Doc. 16), to be supported by the record and proper analysis.

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Accordingly, the Court ORDERS that Plaintiff’s motion for reconsideration, filed on
December 27, 2016, (Doc. 17), is DENIED.

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IT IS SO ORDERED.
Dated:

December 29, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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