Ruiz v. Curry

Filing 47

ORDER DENYING 46 Motion for Reconsideration and Appointment of Counsel signed by District Judge Dale A. Drozd on 7/13/2020. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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No. 1:17-cv-01407-DAD-SKO (PC)

ROGELIO MAY RUIZ,

ORDER DENYING MOTION FOR
RECONSIDERATION AND
APPOINTMENT OF COUNSEL

v.
J. CURRY,

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(Doc. No. 46)
Defendant.

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Plaintiff Rogelio May Ruiz is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 25, 2019, the undersigned adopted the findings and recommendations issued

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by the assigned magistrate judge (Doc. No. 28), dismissing this action for failure to state a

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cognizable claim for relief. (Doc. No. 35.) Judgment was entered on February 25, 2019.

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Plaintiff appealed the court’s order to the Ninth Circuit Court of Appeals. (Doc. No. 37.) On

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November 22, 2019, the Ninth Circuit dismissed plaintiff’s appeal as frivolous. (Doc. Nos. 43,

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44.)

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On June 24, 2020, plaintiff filed a motion for reconsideration and for appointment of

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counsel. (Doc. No. 46.) Plaintiff appears to have previously filed a similar motion in the Ninth

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Circuit, which issued an order on February 14, 2020 stating “[w]e treat Ruiz’s motion (Docket
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Entry No. 12) as a motion for appointment of counsel and as a motion for reconsideration, and

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reject the motion as untimely. See 9th Cir. R. 27-10. No further filings will be entertained in this

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closed case.” (Doc. No. 45)

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”

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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any

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event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id.
Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the

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interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of

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Bishop, 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531

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F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking

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reconsideration under Rule 60, the moving party “must demonstrate both injury and

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circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and

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citation omitted).
“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,” and it “may not be used to

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

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

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown”

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previously, “what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown” at the time the substance of the order which is objected to was considered.

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Here, plaintiff’s motion does not identify any basis under Rule 60(b) for this court to

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reconsider its finding that plaintiff failed to state a cognizable claim for relief under applicable

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law. Moreover, plaintiff did not file his Rule 60 motion “within a reasonable time” as required;

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rather, he filed the pending motion for reconsideration sixteen months after this court dismissed

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his action. Plaintiff’s motion for reconsideration will therefore be denied as frivolous and

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untimely. Because the court will deny plaintiff’s motion for reconsideration, his request for

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appointment of counsel is denied as having been rendered moot.

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Accordingly,

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1.

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Plaintiff’s motion for reconsideration and appointment of counsel (Doc. No. 46) is
denied;

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2.

This case shall remain closed; and

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3.

No further filings will be entertained in this closed case.

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IT IS SO ORDERED.
Dated:

July 13, 2020
UNITED STATES DISTRICT JUDGE

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