Cohea v. Pliler, et al

Filing 240

ORDER signed by Judge Garland E. Burrell, Jr on 5/22/14 ORDERING the 4/8/13 motion for reconsideration 229 is hereby DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY J. COHEA,

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No. 2:00-cv-2799-GEB-EFB P

Plaintiff,
v.

ORDER

CHERYL PLILER, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.

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§ 1983, seeks reconsideration of the court’s order of March 26, 2013 (ECF No. 227), particularly

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the portion of that order granting summary adjudication of plaintiff’s claims related to the

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February 24, 1998 RVR in favor of defendants Colvin, Scarsella, and Rendon. ECF No. 229.

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Plaintiff disagrees with the decision in that order not to consider additional arguments and

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evidence that plaintiff raised for the first time in his objections to the magistrate judge’s findings

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and recommendations.

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Specifically, the court declined to consider plaintiff’s new argument and evidence that his

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claims related to the February 24, 1998 RVR were not barred by Heck v. Humphrey, 512 U.S. 477

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(1994) because the 30 days of lost credits assessed by prison officials in response to that RVR

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could not have impacted the duration of his confinement. Plaintiff argued and presented evidence

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showing that he had a maximum release date that passed in 2011 and an “earliest possible release
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date” that passed in 2007, so any order invalidating the RVR (and thus essentially restoring the

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lost credits) could not result in an earlier release, as the restored credits would only impact dates

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that have long past. The court declined to consider this new information, finding that plaintiff

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had failed to explain why he could not have included it in his opposition to the motion for

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summary judgment.

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Rule 60(b) provides:

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On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect;(2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released or discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that
justifies relief.

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

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unless the ... court is presented with newly discovered evidence, committed clear error, or if there

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is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
Here, plaintiff simply disagrees with the court’s discretionary decision not to consider the

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argument and evidence he presented for the first time in his objections to the findings and

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recommendations. The court concluded that plaintiff had the legal sophistication to include in his

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opposition to the motion for summary judgment an argument that restoration of the 30-days lost

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credits would not impact the duration of his sentence and that plaintiff had failed to show that he

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lacked the information he needed to do so during the briefing on that motion. Plaintiff now

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asserts that he did not learn of the new information regarding the calculation of his credits and his

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release date until January 2013. Even assuming the truth of this assertion, the findings and

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recommendations on the motion did not issue until February 25, 2013. ECF No. 224. Plaintiff

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did not seek to amend his opposition or otherwise inform the court of this new information during

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the period between when he claims he received the information and when the findings and

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recommendations issued.

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/////
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Accordingly, the April 8, 2013 motion for reconsideration (ECF No. 229) is hereby

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DENIED.

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Dated: May 22, 2014

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