Gradford v. Lignoski, et al.

Filing 13

ORDER DENYING 12 Plaintiff's Motion for Reconsideration signed by Magistrate Judge Jennifer L. Thurston on 10/16/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. GRADFORD,

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Plaintiff,
v.
LIGNOSKI., et al.,

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Case No. 1:17-cv-00792-JLT (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
(Doc. 12)

Defendants.

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I. INTRODUCTION
On August 2, 2017, the Court denied Plaintiff’s application to proceed in forma pauperis

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because he was not impoverished. (Docs. 9, 10.) Thus, the Court dismissed the action without

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prejudice to allow Plaintiff to refile it along with the prepayment of the filing fee. Id. On

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September 15, 2017, Plaintiff filed a copy of the CM/ECF notice of electronic filing of the order

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that dismissed this action on which Plaintiff wrote a note requesting the action be reopened and

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reassigned to different judges because they have related three other actions Plaintiff has filed in

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this Court. (Doc. 12.) This is construed as a motion for reconsideration of the order which was

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the basis for dismissal of this action and entry of judgment and is DENIED for the reasons

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delineated below.

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II. DISCUSSION
The history that led up to dismissal of this action is straightforward. On June 13, 2017,

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the Court issued an order for Plaintiff to show cause why his motion to proceed in forma pauperis

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should not be denied because he was not impoverished. (Doc. 4.) Plaintiff responded to that
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order by filing another IFP application indicating a $20 difference in the monthly deposits to his

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inmate trust account. (Doc. 6.) The Court found this to be insufficient to establish Plaintiff’s

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poverty and dismissed the action without prejudice to refiling upon prepayment of the filing fee.

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(Doc. 9.)

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Rule 60(b) of the Federal Rules of Civil Procedure provides that “[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.

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“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’s belated desire to combine his allegations in this action with other actions he has
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filed do not equate to showing new or different circumstances, commission of clear error, or an

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intervening change in the controlling law. In accordance with the provisions of 28 U.S.C. '

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636(b)(1)(C) and Local Rule 303, this Court has conducted a de novo review of this case. Having

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carefully reviewed the entire file, the Court finds the order which dismissed this action, on August

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2, 2017, to be supported by the record and proper analysis.

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III. ORDER
Accordingly, it is ORDERED that Plaintiff’s request to reopen and reassign the case,
filed on September 15, 2017, (Doc. 12), is DENIED.

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IT IS SO ORDERED.
Dated:

October 16, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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