Lipsey v. Hand-Ronga, et al.

Filing 17

ORDER DENYING Motion for Reconsideration 16 ; ORDER for Plaintiff to File Second Amended Complaint within Thirty Days; Thirty Day Deadline to File Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 11/8/18. (Second Amended Complaint 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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CHRISTOPHER LIPSEY, JR.,

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Plaintiff,

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vs.
N. HAND-RONGA, et al.,

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Defendants.

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1:17-cv-01704-LJO-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION
(ECF No. 16.)
ORDER FOR PLAINTIFF TO FILE
SECOND AMENDED COMPLAINT
WITHIN THIRTY DAYS
THIRTY-DAY DEADLINE TO FILE
SECOND AMENDED COMPLAINT

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I.

BACKGROUND

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Christopher Lipsey, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on December 19, 2017. (ECF No. 1.) On April 9, 2018, Plaintiff filed

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the First Amended Complaint as a matter of course. (ECF No. 12.)

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On September 24, 2018, the court issued a screening order dismissing the First Amended

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Complaint for failure to state a claim, with leave to file a Second Amended Complaint within

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thirty days. (ECF No. 15.) On October 5, 2018, Plaintiff filed objections to the court’s order,

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which the court construes as a motion for reconsideration of the order. (ECF No. 16.)
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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 justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531

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F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party

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“must demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation

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marks and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires

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Plaintiff to show “what new or different facts or circumstances are claimed to exist which did

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not exist or were not shown upon such prior 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 marks

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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 F.Supp.2d

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

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

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

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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 his

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due process claim based on his sex offender label. Plaintiff also contends that he is bringing a

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retaliation claim in this case. Plaintiff argues that the court relied on law that is inapplicable to

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his case and failed to recognize that his life is in danger. Plaintiff reiterates his allegations and

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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, his

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remedy is to file a Second Amended Complaint which clearly and succinctly states his factual

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allegations and the claims upon which he wishes to proceed. Then, the court will screen the

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Second Amended Complaint based on his allegations and claims stated therein. Plaintiff shall

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be granted additional time to prepare and file the Second Amended Complaint.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for reconsideration, filed on October 5, 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 September 24, 2018, by filing a

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Second 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:

November 8, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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