Nelson v. Dickinsen et al

Filing 72

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/15/13 recommending that plaintiff's 05/09/13 motion to alter or amend judgment 69 be denied. MOTION to alter or amend the judgment 69 referred to Judge Morrison C. England Jr. Objections due within 14 days. (cc: DAD)(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DYKE EDWARD NELSON,

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Plaintiff,

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vs.

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No. 2:10-cv-2156 MCE JFM P

DR. ALEX ZIGA,

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FINDINGS & RECOMMENDATIONS

Defendant.

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/

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Plaintiff is a state prisoner who proceeded pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff alleged that defendant Dr. Alex Ziga violated plaintiff’s

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rights under the Eighth Amendment by prescribing medications to plaintiff without discontinuing

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other medications that were “lethal” when combined. (Fifth Am. Compl. filed May 25, 2011

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(ECF No. 19) at 3.) By order filed April 29, 2013, the assigned District Judge adopted findings

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and recommendations that had been issued, granted summary judgment for defendant and denied

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plaintiff’s motion to amend his complaint. (ECF No. 66). Judgment was entered on the same

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day (ECF No. 67).

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On May 9, 2013, plaintiff filed a motion to alter or amend the judgment pursuant

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to Fed. R. Civ. P. 59(a) or 60. (ECF No. 69.) The court construes this as a motion for relief from

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judgment pursuant to Fed. R. Civ. P. 60. Defendant has opposed plaintiff’s motion. (ECF No.

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70.)
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Rule 60(b) of the Federal Rules of Civil Procedures provides in relevant part for

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relief from judgment on the basis of “ mistake, inadvertence, surprise, or excusable neglect” or

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“any other ground that justifies relief.” Fed. R. Civ. P. 60(b)(1), (6). In his motion to alter or

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amend the judgment, plaintiff neither advances any new argument nor presents any new

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evidence. For that reason, this court finds that plaintiff has made no showing that supports his

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request for relief from the judgment entered in this action.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s May 9, 2013
motion to alter or amend judgment (ECF No. 69) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 15, 2013.

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nels2156.60b

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