Martinez v. Hoover, et al

Filing 52

ORDER signed by District Judge Kimberly J. Mueller on 8/13/2011 ORDERING that the 43 motion for reconsideration is DENIED as untimely. No further motions for reconsideration of the magistrate judge's August 16, 2010, or October 1, 2010, orders will be considered. (Duong, D)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARCHIE A. MARTINEZ, Plaintiff, 12 13 14 15 16 17 No. CIV S-09-0680-KJM-CMK-P vs. ORDER G. HOOVER, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Plaintiff’s motion for reconsideration of the magistrate judge’s order denying 19 plaintiff’s request for counsel is pending before the court. (ECF 43.) 20 As provided by Eastern District of California Local Rule 303(b), “rulings by 21 Magistrate Judges . . . shall be final if no reconsideration thereof is sought from the Court within 22 fourteen (14) days calculated from the date of service of the ruling on the parties . . . .” Here, 23 plaintiff is challenging two orders, filed August 16, 2010, and October 1, 2010. The August 16, 24 2010, order denied plaintiff’s request for the appointment of counsel; the October 1, 2010, order 25 denied plaintiff’s request for reconsideration of the prior order. Plaintiff’s pending motion for 26 reconsideration was filed on the court’s docket on November 5, 2010; the proof of service 1 1 attached indicates plaintiff served the motion on October 26, 2010. Plaintiff’s motion thus was 2 served and filed more than fourteen days from the date of service of the magistrate judge’s 3 orders.1 The motion, therefore, is untimely. 4 Even if the motion had been timely filed, the motion would be denied. As 5 provided by Local Rule 303(f), a magistrate judge’s order shall be upheld unless “clearly 6 erroneous or contrary to law.” Upon review of the file, the magistrate judge’s ruling was not 7 clearly erroneous or contrary to law. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The motion for reconsideration (ECF 43) is denied as untimely; and 10 2. No further motions for reconsideration of the magistrate judge’s August 11 16, 2010, or October 1, 2010, orders will be considered. 12 DATED: August 13, 2011. 13 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 1 As provided by Houston v. Lack, 487 U.S. 266 (1988), because plaintiff is a pro se prisoner litigant, the court has given plaintiff the benefit of the date shown on his proof of service, as the date he delivered his motion to prison authorities for mailing to the court. 2

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