Cervantes v. The Whole Department of Corrections et al

Filing 25

ORDER DENYING Plaintiff's 24 Notice of Appeal to District Judge, Construed as a Motion for Reconsideration signed by Chief Judge Lawrence J. O'Neill on 11/12/2019. (Orozco, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN TONY CERVANTES,

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Plaintiff,

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v.
THE WHOLE DEPARTMENT OF
CORRECTIONS, et al.,

Case No. 1:18-cv-00397-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S NOTICE
OF APPEAL TO DISTRICT JUDGE,
CONSTRUED AS A MOTION FOR
RECONSIDERATION
(ECF No. 24)

Defendants.

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I.

Introduction

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Plaintiff Ruben Tony Cervantes is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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On November 7, 2018, the assigned Magistrate Judge issued findings and
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recommendations recommending to dismiss this action, with prejudice, for failure to state a claim
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upon which relief can be granted and for failure to comply with Federal Rule of Civil Procedure
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8. (ECF No. 15.) On December 5, 2018 and on January 4, 2019, the Magistrate Judge granted
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Plaintiff’s two motions for an extension of time to file objections to the findings and

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recommendations. (ECF Nos. 17, 19.) On February 20, 2019, after Plaintiff failed to file
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objections to the findings and recommendations or a third request for an extension of time, the
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undersigned issued an order adopting the November 7, 2018 findings and recommendations in
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full and dismissing the instant action, with prejudice, for failure to comply with Rule 8 and failed

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to state a cognizable claim upon which relief may be granted. (ECF No. 20.)

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On September 12, 2019, Plaintiff filed a notice of appeal to District Judge, which the

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Court interprets as a motion for reconsideration of the Court’s February 20, 2019 order adopting

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the November 7, 2018 findings and recommendations and dismissing this action.

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II.

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Motion for Reconsideration
Federal Rule of Civil Procedure 60(b)(6) permits the Court to relieve a party from an

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order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable

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remedy to prevent manifest injustice and is to be utilized only where extraordinary

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circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation

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marks and citation omitted). “A party moving for relief under Rule 60(b)(6) must demonstrate

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both injury and circumstances beyond [their] control[.]” Id. (internal quotation marks and

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citation omitted). Additionally, Local Rule 230(j) requires that, when a party makes a motion for

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reconsideration, the party must show “what new or different facts or circumstances are claimed to

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

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“why the facts and circumstances were not shown at the time of the prior 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 quotation marks

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and citation omitted). Therefore, “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation of the cases and arguments considered

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by the [C]ourt before rendering its original decision fails to carry the moving party’s burden.”

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United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal

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quotation marks and citation omitted).

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Here, Plaintiff contends that the Magistrate Judge incorrectly determined that Plaintiff

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failed to state any claim upon which relief may be granted. Plaintiff states that he “did state a

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claim which was money and damages, pain and suffering, mental, physically, under cruel and
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unusual punishment.” (ECF No. 24, at 1-2.) However, Plaintiff’s motion fails to present “new or

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different facts or circumstances … which did not exist or were not shown upon such prior

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motion,” as required by Local Rule 230(j). The Court’s order adopting the Magistrate Judge’s

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findings and recommendations was issued following a de novo review of the entire case, and

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Plaintiff has failed to set forth any additional grounds that the Court did not consider that would

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entitle him to relief from the Court’s judgment. Therefore, Plaintiff’s motion for reconsideration

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is denied.

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III.

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Order
Based on the foregoing, Plaintiff’s motion for reconsideration, (ECF No. 24), is HEREBY

DENIED. This action remains closed.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

November 12, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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