Payne v. Martin et al

Filing 111

ORDER signed by District Judge Troy L. Nunley on 04/19/16 ORDERING that plaintiff's 106 Motion for relief from judgment, construed as a Motion for Reconsideration pursuant to Rule 54(b), is DENIED. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE’THIEL PAYNE,

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No. 2:11-cv-1970-TLN-EFB P

Plaintiff,
v.

ORDER

J. MARTIN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Pending before the Court is Plaintiff’s March 1, 2016, motion for relief from

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judgment, which the Court construes as a motion for reconsideration pursuant to Rule 54(b) of the

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Federal Rules of Civil Procedure.1 (ECF No. 106.) Plaintiff requests reconsideration of the

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Court’s orders dismissing Defendants Bax and Martin from this action.2 Id.

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Orders that adjudicate the rights and liabilities of fewer than all the parties may be revised

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at any time before the entry of a judgment. Fed. R. Civ. P. 54(b). “Reconsideration is

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appropriate if the district court (1) is presented with newly discovered evidence, (2) committed

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clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” School Dist. No. 1J v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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The motion also requested other miscellaneous relief which was properly resolved by the magistrate judge
in the amended pretrial order.
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This action proceeds against Defendant Ramirez only and is scheduled to begin trial on July 25, 2016.

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Further, Local Rule 230(j) requires that a motion for reconsideration state “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown at the time of the prior motion.” E.D. Cal., Local Rule 230(j)(3)-(4).

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On October 17, 2012, the magistrate judge issued an order informing Plaintiff that he must

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provide new information about how to locate Defendant Martin for service of process. (ECF No.

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28.) On December 19, 2012, after Plaintiff failed to respond to that order, the magistrate judge

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recommended that Defendant Martin be dismissed from this action pursuant to Rule 4(m) of the

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Federal Rules of Civil Procedure. (ECF No. 37.) Plaintiff did not object to the findings and

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recommendations. On February 5, 2013, the Court adopted the findings and recommendations in

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full and dismissed Defendant Martin. (ECF No. 40.)

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Plaintiff does not explain in his current motion what efforts he made, if any, to locate

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Defendant Martin from October 2012 to February 2013. Instead, Plaintiff vaguely alleges that he

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could not locate Defendant Martin for service of process any sooner because he was denied “fair

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discovery” and “misled by prison staff.” (ECF No. 106 at 3, 5.) However, Plaintiff does not

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indicate whether he actually served a discovery request on Defendant Ramirez seeking

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information about where Defendant Martin could be located for service of process or how

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Defendant Ramirez (who listed Martin as a trial witness in his August 29, 2014 pretrial statement)

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responded to that request. See Def. Ramirez’s Pretrial Statement (ECF No. 84) at 8 (indicating

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that Martin could be located through defense counsel). Plaintiff does not otherwise explain what

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circumstances changed that only “recently” allowed him to locate an address for service of

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process on Defendant Martin. See id. at 3. Plaintiff fails to demonstrate that he is entitled to

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relief from the order dismissing Defendant Martin from this action.

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On August 16, 2013, the Court dismissed Defendant Bax from this action because

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Plaintiff failed to exhaust his administrative remedies. (ECF No. 49.) Plaintiff fails to

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demonstrate any basis for relief from this order.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for relief from judgment,
construed as a motion for reconsideration pursuant to Rule 54(b) (ECF No. 106), is denied.
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Dated: April 19, 2016

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Troy L. Nunley
United States District Judge

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