Asberry v. Cate et al

Filing 82

ORDER signed by Judge Kimberly J. Mueller on 10/19/2012 DENYING 79 Motion for Reconsideration. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,
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v.
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MATTHEW CATE, et al.,
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Defendants.
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______________________________)
Plaintiff,

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No. CIV S- 11-2462 KJM KJN P

ORDER

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Plaintiff is a state prison inmate proceeding pro se with a civil rights action under

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42 U.S.C. § 1983, alleging generally that prison officials failed to protect him from an assault by

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another inmate and failed to provide adequate medical care. In findings and recommendations

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filed July 23, 2012, the magistrate judge recommended that plaintiff’s motion for a preliminary

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injunction seeking an order directing prison officials to provide him with adequate medical care

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(ECF No. 50) be denied because it sought relief from individuals who are not parties to the

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instant lawsuit. ECF No. 56. This court adopted the findings and recommendations in an order

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filed September 12, 2012, acknowledging plaintiff’s objections to the findings and

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recommendations and stating that upon the de novo review of the case as required by 28 U.S.C.

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§ 636(b)(1)(C), it found the findings and recommendations to be supported by the record and by

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proper analysis. ECF No. 74.
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On September 28, 2012, plaintiff filed a request for reconsideration on the ground

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that “the judge did not give any clue of how the decision was reached. The record is silent in

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this regard.” ECF No. 79 at 1. He concludes that he “would like the Judges reasons for the

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courts ruling [sic]. . . .” Id. at 2.

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“A district court's power to rescind, reconsider, or modify an interlocutory order

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is derived from the common law, not from the Federal Rules of Civil Procedure.” City of Los

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Angeles v. Santa Monica BayKeeper, 254 F.3d 882, 886 (9th Cir. 2001); McConnell v. Lassen

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County, No. CIV. S-05-0909 FCD DAD, 2008 WL 4482853, at *2 (E.D. Cal. Oct. 3, 2008)

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(“Where reconsideration of a non-final order is sought, the court has ‘inherent jurisdiction to

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modify, alter, or revoke it.’” (quoting United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir.

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2000)). In addition, Federal Rule of Civil Procedure 54(b) authorizes courts to revise “any order

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or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of

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fewer than all the parties .. . at any time before the entry of a judgment adjudicating all the

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claims and all the parties' rights and liabilities.” Fed. R. Civ. P. 54(b); Regents v. University of

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Calif. v. Bernzomatic, No. CIV. 2:10-cv-1224 FCD GGH, 2011 WL 666912, at *2 (E.D. Cal.

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Feb. 11, 2011). Reconsideration is appropriate where there has been an intervening change in

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controlling law, new evidence has become available, or it is necessary to correct clear error or

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prevent manifest injustice. Cachil Dehe Band of Wintun Indians v. California, 649 F. Supp. 2d

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1063, 1069 (E.D. Cal. 2009) (citing School Dist. No. 1J Multnomah County, Oregon v. AC&S

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)).

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Plaintiff says only that he believes “the ruling was not in accordance with Local

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Rule 303(a) and 28 U.S.C. §636(b)(1)” and so has not provided a sufficient basis for this court’s

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reconsideration of its order. Even if he had, however, the court would not grant reconsideration:

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absent “strong evidence to the contrary” an order that states the court has conducted a de novo

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review of the case and considered a party’s objections is sufficient. Pinkston v. Madry, 440

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F.3d 879, 894 (7th Cir. 2006); Habets v. Waste Mgmt., Inc., 363 F.3d 378, 381-82 (5th Cir.
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2004) (two sentence order adopting the magistrate’s recommendation sufficient under 28 U.S.C.

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§ 636(b)(1)). Plaintiff’s motion for reconsideration (ECF No. 79) is denied.

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IT IS SO ORDERED.
DATED: October 19, 2012.

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UNITED STATES DISTRICT JUDGE

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