Lavery v. Dhillon

Filing 66

ORDER signed by Chief Judge Morrison C. England, Jr on 6/30/2015 DENYING plaintiff's 63 motion for reconsideration. (Yin, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,
Plaintiff,

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v.

No. 2:13-cv-2083-MCE-AC P
ORDER

B. DHILLON, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed

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numerous documents with the Court detailing his difficulty in prosecuting his case due to

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his degenerative arthritis and has repeatedly requested appointment of counsel. See

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ECF Nos. 38, 40, 45, 48, 49, 51, 54, 55. On June 16, 2015, the assigned magistrate

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judge issued an order denying Plaintiff’s requests for appointment of counsel. ECF No.

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59. However, the magistrate judge requested further briefing from the Deputy Attorney

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General regarding what reasonable accommodations, if any, are currently being

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provided to Plaintiff to assist him with writing. The June 16, 2015 order also addressed

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Plaintiff’s request for a court order regarding access to legal supplies, a request for the

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status of a missing filing, and a request for a sixty-day extension, finding the three

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requests too ambiguous to grant. Id. On June 25, 2015, Plaintiff filed a Motion for

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Reconsideration of the June 16, 2015 order. ECF No. 63.
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Pursuant to Local Rule 303(f), Plaintiff is entitled to reconsideration if the

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magistrate judge’s decision is either “clearly erroneous or contrary to law.” See 28

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U.S.C. § 636(b)(1)(A). In applying the clearly erroneous standard, this Court will not

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reverse the magistrate judge’s order simply because the Court “would have decided the

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case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). “Rather, a

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reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and

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firm conviction that a mistake has been committed.’” Easley v. Cromartie, 532 U.S. 234,

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242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395

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(1948)). Motions for reconsideration are therefore not intended to “give an unhappy

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litigant one additional chance to sway the judge.” Kilgore v. Colvin, No. 2:12-cv-1792-

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CKD, 2013 WL 5425313, at *1 (E.D. Cal. Sept. 27, 2013). Additionally, motions for

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reconsideration should not be used to raise arguments or present evidence that could

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have reasonably been raised or presented earlier. Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
Plaintiff first argues that there is a factual error in the order. In discussing

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Plaintiff’s allegations that he was having trouble prosecuting his case, the assigned

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magistrate noted that “Plaintiff recently received a Monday through Friday prison work

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assignment and is only able to go to the law library on Saturday and Sunday, when the

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library technician and other inmate assistants are not working.” Order, ECF No. 59, at 2.

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In his Motion for Reconsideration, Plaintiff notes that he received this full-time work

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assignment back in August 21, 2014, not “recently” as stated in the order. Mot., ECF

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No. 63, at 1. This corrected fact does not convince the Court that the magistrate judge’s

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response—a request for further briefing from the Deputy Attorney General—was in error.
The briefing by the Deputy Attorney General should also address Plaintiff’s next

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argument that he has been denied access to a typewriter despite having a

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Comprehensive Accommodation Chrono stating that Plaintiff needs a typewriter. See

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ECF No. 63 at 5. Presumably, Plaintiff’s issues with access to paper for the typewriter

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will also be addressed because, as Plaintiff notes, a typewriter is useless without paper.

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Id. at 3.

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Finally, Plaintiff argues that he has not been receiving “priority (preferred legal

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user) ducat/passes.” This claim was not addressed in the June 16, 2015 order and is

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therefore not appropriate for review on a Motion for Reconsideration. See Marlyn

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Nutraceuticals, Inc., 571 F.3d at 880.

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For the reasons stated above, Plaintiff’s Motion for Reconsideration (ECF No. 63)
is DENIED.
IT IS SO ORDERED.
Dated: June 30, 2015

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