Bisel v. Kernan, et al.

Filing 23

ORDER DENYING 22 Motion for Reconsideration, signed by District Judge Dale A. Drozd on 1/25/2021. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY EUGENE BISEL,

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Plaintiff,

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No. 1:18-cv-00090-DAD-JLT (PC)

v.

ORDER DENYING MOTION FOR
RECONSIDERATION

SCOTT KERNAN, et al.,
(Doc. No. 22)

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Defendants.

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Plaintiff Gregory Eugene Bisel is a state prisoner proceeding pro se and in forma pauperis

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in 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 April 5, 2019, the assigned magistrate judge issued findings and recommendations,

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recommending that this action be dismissed with prejudice due to plaintiff’s lack of standing to

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bring suit under California Proposition 57. (Doc. No. 15.) Those findings and recommendations

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were served on plaintiff and contained notice that any objections thereto were to be filed within

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twenty-one days after service. (Id. at 8.) Plaintiff timely filed objections on May 2, 2019. (Doc.

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No. 16.) On June 24, 2019, after considering plaintiff’s objections, the undersigned adopted the

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findings and recommendations in full and dismissed this case with prejudice. (Doc. No. 17.)

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Judgment was entered accordingly, and the action was closed. (Doc. No. 18.)

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On December 2, 2019, plaintiff filed a motion for relief from a final judgment, pursuant to

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Federal Rule of Civil Procedure 60(b). (Doc. No. 19.) The undersigned denied that motion on

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June 29, 2020. (Doc. No. 21.) On July 8, 2020, plaintiff filed the instant motion for relief from a

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final judgment. (Doc. No. 22.)

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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.

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Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to

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show the “new or different facts or circumstances claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.” Motions to

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reconsider are committed to the discretion of the trial court. See Combs v. Nick Garin Trucking,

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825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en

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banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce

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the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield,

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634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828

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F.2d 514 (9th Cir. 1987).

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Here, plaintiff provides no justification for reconsideration of the court’s previously

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entered judgment. Plaintiff requests that the court take judicial notice of his state habeas corpus

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petition in the California Court of Appeal for the Fifth Appellate District, and he asserts that the

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state court “apparently has believed that Plaintiff does indeed have standing to contend he is

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entitled to be considered for Proposition 57’s early parole provision for nonviolent prisoners.”

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(Doc. No. 22 at 1–2.) In the June 24, 2019 order adopting the magistrate judge’s findings and

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recommendations, the undersigned took judicial notice of plaintiff’s sentence as delineated by the

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California Court of Appeal. (See Doc. No. 17 at 2.) The undersigned then concluded that
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plaintiff was not entitled to early parole consideration under California law, specifically

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California’s Proposition 57, until he has served twelve years on his underlying conviction, which

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will not occur until August 5, 2024. (Id. at 2.)

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In sum, the instant motion has provided no new or different facts, circumstances, or law

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that that would justify this court’s reconsideration if its previously entered judgment. Moreover,

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“further filings . . . cannot yield the results [plaintiff] seeks” because he cannot have standing

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until August 5, 2024. See Vera v. Biter, No. 1:14-cv-00567-LJO-JLT, 2016 WL 3999995, at *2

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(E.D. Cal. July 25, 2016). Accordingly, plaintiff’s motion for relief from the judgment pursuant

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to Rule 60(b) (Doc. No. 22) is denied. This case is closed, and no further filings by plaintiff will

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be considered.

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IT IS SO ORDERED.

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Dated:

January 25, 2021
UNITED STATES DISTRICT JUDGE

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