Zochlinski v. Blum et al

Filing 89

ORDER signed by District Judge Kimberly J. Mueller on 7/19/2016 DENYING 88 Motion to Vacate Judgment. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALAN ZOCHLINSKI,

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No. 2:11-cv-03295-KJM-KJN

Plaintiff,
v.

ORDER

RICHARD C. BLUM, et al.,
Defendants.

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On December 8, 2015, the magistrate judge recommended this action be dismissed

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for failure to prosecute. ECF No. 75. Plaintiff Howard Zochlinski objected. ECF No. 79. The

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court adopted the recommendation of dismissal in an order filed June 10, 2016. ECF No. 86.

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The action was dismissed, and judgment was entered the same day. ECF No. 87.

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On July 8, 2016, Zochlinski asked the court to reconsider, to vacate its order

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dismissing the action, and to relieve him of the judgment, citing Federal Rules of Civil Procedure

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59(a) and 60(b). ECF No. 88. He reemphasizes several points raised in his objections to the

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magistrate judge’s findings and recommendations. See generally id. at 3 (“[This court]

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apparently disregarded Zochlinksi’s objections . . . .”); id. at 7 (“[Zochlinski] does believe that, in

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reaching its decision, the Court did not give sufficient weight in its considerations to Plaintiff’s

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medical issues . . . [and] demonstrated a bias toward the defendant’s position.”).
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The court construes Mr. Zochlinski’s motion as one brought under Federal Rule of

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Civil Procedure 59(e). See Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must

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be filed no later than 28 days after the entry of the judgment.”); Am. Ironworks & Erectors, Inc. v.

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N. Am. Const. Corp., 248 F.3d 892, 898 (9th Cir. 2001) (requests for reconsideration filed within

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the time period identified in Rule 59(e) are construed as motions under that section). “Under

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Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law.” 389 Orange Street

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Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

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Mr. Zochlinski’s motion does not identify newly discovered evidence, an

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intervening change in the law, or a manifest injustice. The court clarifies, to the extent not

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previously made clear, that it considered each of his filings, including those at ECF Nos. 76, 79,

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81, 82, and 84, before it issued its order adopting the recommendation of dismissal.

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IT IS SO ORDERED.
DATED: July 19, 2016

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UNITED STATES DISTRICT JUDGE
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