Chappell v. Fleming et al
Filing
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ORDER signed by District Judge Morrison C. England, Jr on 8/12/16 ORDERING that, upon reconsideration, this court's order filed 12/23/15 (ECF No. 105 ), is AFFIRMED. (Becknal, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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REX CHAPPELL,
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Plaintiff,
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No. 2:12-cv-0234 MCE AC P
v.
ORDER
B. FLEMING, et al.,
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Defendants.
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Plaintiff, a former state prisoner proceeding pro se, has filed a request for
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reconsideration of the district court’s order, filed December 23, 2015, granting
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defendants’ motion for summary judgment (ECF No. 105). ECF No. 108. Plaintiff
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contends that on November 16, 2015, he submitted a timely request to extend his time
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to file objections to the November 2, 2015 findings and recommendations. Id. at 1-2.
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Plaintiff states that he was released from custody the following day and speculates that
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the court never received his motion because staff in the mailroom must have discarded it
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when they could not verify that he was housed at the prison. Id. at 2. Plaintiff requests
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that the case be reinstated or alternatively that the court accept his notice of appeal. Id.
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at 2-3.
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“[A] motion for reconsideration of summary judgment is appropriately brought
under either Rule 59(e) or Rule 60(b).” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th
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Cir. 1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). The motion “is
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treated as a motion under Federal Rule of Civil Procedure 59(e) if it is filed timely under
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that rule and as a motion under Federal Rule of Civil Procedure 60(b) otherwise.” Moore
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v. Mortgage Elec. Registration Sys., Inc., 2016 WL 2897943 at *1 n.1 (9th Cir. May 18,
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2016) (citing Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-
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99 (9th Cir. 2001)). Since plaintiff’s motion for reconsideration was filed within twenty-
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eight days of the entry of judgment, the motion is considered under Rule 59(e).
“Under Rule 59(e), a motion for reconsideration should not be granted, absent
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highly unusual circumstances, unless the district court is presented with newly
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discovered evidence, committed clear error, or if there is an intervening change in the
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controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
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Further, Local Rule 230(j) requires that a motion for reconsideration state “what new or
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different facts or circumstances are claimed to exist which did not exist or were not
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shown upon such prior motion, or what other grounds exist for the motion; and . . . why
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the facts or circumstances were not shown at the time of the prior motion.” L.R.
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230(j)(3)-(4).
In his motion, plaintiff asserts that he submitted a timely request to extend his time
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to file objections and speculates that his release from custody the following day led to
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the motion being discarded by prison staff. ECF No. 108 at 1-2. Defendants do not
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address plaintiff’s claim that he submitted a timely motion for extension to prison staff
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prior to his release. ECF No. 109. Although plaintiff did not file a copy of his objections
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with his motion for reconsideration, he has since submitted them. ECF No. 111.
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Since it appears that plaintiff may have timely requested an extension of his time
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to file objections to the November 2, 2015 findings and recommendations, this court has
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conducted a de novo review of this case in accordance with the provisions of 28 U.S.C.
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§ 636(b)(1)(C) and Local Rule 304. Having carefully reviewed the entire file, the court
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finds that plaintiff’s objections merely rehash his previous arguments.
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///
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The court re-affirms that the findings and recommendations were supported by the
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record and by proper analysis.
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Therefore, IT IS HEREBY ORDERED that, upon reconsideration, this court’s
order filed December 23, 2015 (ECF No. 105), is AFFIRMED.
IT IS SO ORDERED.
Dated: August 12, 2016
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