Lillian Smith v. Burgdorff et al

Filing 12

ORDER DENYING 11 Motion for Reconsideration ; ORDERED that within thirty days from the date of service of this order, Plaintiff is required to comply with the courts Screening Order of April 16, 2018, by filing a First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 05/7/18. (30-day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LILLIAN SMITH,

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Plaintiff,

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vs.

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ORDER DENYING MOTION FOR
RECONSIDERATION
(ECF No. 11.)

C. BURGDORFF, et al.,

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1:17-cv-00634-DAD-GSA-PC

Defendants.

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I.

BACKGROUND

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This is a civil action filed by Lillian Smith (“Plaintiff”), a state prisoner proceeding pro

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se. This action was initiated by civil complaint filed by Plaintiff in the Madera County

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Superior Court on November 18, 2016 (Case #MCV073193). On May 17, 2017, defendants C.

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Burgdorff, J. Harry, E. Olesky, and B. Wilkins (“Defendants”) removed the case to federal

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court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(a). (ECF No. 1.)

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On April 16, 2018, the court screened the Complaint under 28 U.S.C. § 1915A and issued an

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order dismissing the Complaint for failure to state a claim upon which relief may be granted,

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with leave to amend. (ECF No. 10.) In the order, Plaintiff was directed to file a First Amended

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Complaint within thirty days, and she was forewarned that her failure to comply with the

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court’s order “shall result in a recommendation that this case be dismissed for failure to state a

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claim.” (Id. at 10.)
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On May 3, 2018, Plaintiff filed a motion for reconsideration of the court’s screening

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order. (ECF No. 11.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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justifies relief. 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 citation

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omitted). The moving party “must demonstrate both injury and circumstances beyond his

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

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an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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

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

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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, committed

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

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

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

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

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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

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

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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III.

DISCUSSION

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Plaintiff requests the court to reconsider its decision in the screening order to dismiss

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her claims against defendants C. Burgdorff, J. Harry, E. Olesky, and B. Wilkins. Plaintiff

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disagrees with the court’s assessment of these claims. Plaintiff reiterates her allegations against

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defendants and requests the court to reverse the decision in the screening order.
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Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court
to reverse its prior decision. Therefore, the motion for consideration shall be denied.

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At this stage of the proceedings, if Plaintiff disagrees with the court’s screening order

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her remedy is to file a First Amended Complaint clearly and succinctly stating the allegations

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and claims upon which she wishes to proceed. Thereafter the court will screen the First

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Amended Complaint based on her allegations stated therein.

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additional time to prepare and file a First Amended Complaint.

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IV.

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Plaintiff shall be granted

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed on May 3, 2018, is DENIED;

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2.

Within thirty days from the date of service of this order, Plaintiff is required to

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comply with the court’s Screening Order of April 16, 2018, by filing a First

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Amended Complaint; and

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3.

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Plaintiff’s failure to comply with this order shall result in a recommendation that
this action be dismissed for failure to state a claim.

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IT IS SO ORDERED.
Dated:

May 7, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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