Jacobsen v. Diaz, et al.

Filing 26

ORDER DENYING 25 Motion to Reopen Case, signed by Chief Judge Lawrence J. O'Neill on 12/4/2019. (Orozco, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL JACOBSEN,

12

Plaintiff,

13
14

Case No. 1:18-cv-00199-LJO-BAM (PC)
ORDER DENYING MOTION TO REOPEN
CASE

v.
(ECF No. 25)
DIAZ, et al.,

15

Defendants.

16
17

Plaintiff Michael Jacobsen (“Plaintiff”) is a former county detainee proceeding pro se and

18

in forma pauperis in this civil rights action pursuant 42 U.S.C. § 1983. This matter was referred

19

to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20

On July 27, 2018, the assigned Magistrate Judge issued findings and recommendations

21

recommending dismissal of this action as time barred. (ECF No. 20.) Those findings and

22

recommendations were served on Plaintiff and contained notice that any objections thereto were

23

to be filed within fourteen (14) days after service. (Id. at 7.) Plaintiff filed objections on August

24

6, 2018. (ECF No. 22.) On August 8, 2018, the undersigned adopted the findings and

25

recommendations in full. (ECF No. 23.) Judgment was entered accordingly the same day. (ECF

26

No. 24.)

27

Currently before the Court is Plaintiff’s motion seeking to set aside the dismissal of this

28

action, “due to good cause for the lack of prosecution,” filed December 3, 2019. (ECF No. 25.)
1

1

The Court has received no other communication from Plaintiff regarding this action between

2

entry of judgment on August 8, 2018, and the instant motion.

3

In his motion, Plaintiff states that this action was “dismissed due to lack of prosecution

4

and the time running out on the deadlines & cut off dates.” (ECF No. 25, p. 1.) Plaintiff goes on

5

to explain that due to a combination of re-incarceration, lack of knowledge with legal matters, his

6

inability to find counsel, his house burning up with all of his legal work inside, and various other

7

troubles, he has been unable to prosecute this action. Plaintiff therefore argues that the dismissal

8

of this action should be set aside for good cause for his lack of prosecution. (Id.)

9

“A motion for reconsideration should not be granted, absent highly unusual

10

circumstances, unless the district court is presented with newly discovered evidence, committed

11

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

12

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

13

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

14

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

15

considered by the Court in rendering its decision, U.S. v. Westlands Water Dist., 134 F. Supp. 2d

16

1111, 1131 (E.D. Cal. 2001) (internal quotation marks and citation omitted). Additionally,

17

pursuant to this Court’s Local Rules, when filing a motion for reconsideration of an order, a party

18

must show “what new or different facts or circumstances are claimed to exist which did not exist

19

or were not shown upon such prior motion, or what other grounds exist for the motion.” Local

20

Rule 230(j).

21

Although Plaintiff states that he is presenting new circumstances to explain his lack of

22

prosecution in this action, warranting reopening of the case, this action was not dismissed based

23

on any lack of prosecution by Plaintiff. As noted above, the Magistrate Judge recommended

24

dismissal of this action as time barred, and after consideration of Plaintiff’s objections, the

25

undersigned adopted that recommendation in full. Plaintiff did not fail to meet any deadlines in

26

this action, and he had an opportunity to respond to the findings and recommendations before

27

they were adopted in full. Nothing presented in this new motion supports reconsideration of that

28

decision.
2

1
2

Accordingly, Plaintiff’s motion to reopen this action, (ECF No. 25), is HEREBY
DENIED. This action remains closed.

3
4
5

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

December 4, 2019

UNITED STATES CHIEF DISTRICT JUDGE
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3