Hendon v. Kulka et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 7/23/14 denying 7 Motion for Reconsideration; Within thirty days from the date of this order, plaintiff shall submit the filing fee of $400; Failure to comply with this order will result in dismissal of this action.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS HENDON,

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No. 2: 14-cv-1171 KJN P

Plaintiff,
v.

ORDER

WILLIAM E. KULKA, et al.,
Defendants.

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Plaintiff is state prisoner, proceeding without counsel, with a civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. (ECF No. 4.)

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On June 9, 2014, the undersigned denied plaintiff’s motions to proceed in forma pauperis due to

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plaintiff’s status as a three strikes litigant under 28 U.S.C. § 1915(g). (ECF No. 6.) The

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undersigned granted plaintiff thirty days to pay the filing fee. (Id.)

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On June 16, 2014, plaintiff filed a motion for reconsideration of the June 9, 2014 order.
(ECF No. 7.) This motion is addressed to a District Judge.
Once a civil case is referred to a Magistrate Judge under 28 U.S.C. § 636(c), the reference

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can be withdrawn only “for good cause shown on its own motion, or under extraordinary

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circumstances shown by any party.” 28 U.S.C. § 636(c)(4); Dixon v. Ylst, 990 F.2d 478, 480

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(9th Cir. 1993) (stating that “[t]here is no absolute right, in a civil case, to withdraw consent to

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trial and other proceedings before a magistrate judge.”). A referral to a magistrate judge will not
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be vacated where a party has consented in a signed writing to Magistrate Judge jurisdiction, the

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party fails to make a motion to vacate the reference that is supported by a showing of

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extraordinary circumstances, and the Court does not sua sponte find good cause for withdrawal of

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consent. Id.

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Plaintiff has not made a motion to vacate the reference to undersigned that is supported by

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a showing of extraordinary circumstances. Accordingly, the request for reconsideration is

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construed as being addressed to the undersigned.

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Standards For Motions To Reconsider
Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay

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of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of

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judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party

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seeking reconsideration of a court’s order must brief the “new or different facts or circumstances

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[which] were not shown upon such prior motion, or what other grounds exist for the motion.” Id.

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The rule derives from the “law of the case” doctrine which provides that the decisions on legal

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issues made in a case “should be followed unless there is substantially different evidence . . . new

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controlling authority, or the prior decision was clearly erroneous and would result in injustice.”

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Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner

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v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).

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Courts construing Federal Rule of Civil Procedure 59(e), providing for the alteration or

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amendment of a judgment, have noted that a motion to reconsider is not a vehicle permitting the

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unsuccessful party to “rehash” arguments previously presented, or to present “contentions which

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might have been raised prior to the challenged judgment.” Costello v. United States, 765 F.Supp.

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1003, 1009 (C.D.Cal. 1991); see also F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986);

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Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa. 1991). These holdings

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“reflect[] district courts' concerns for preserving dwindling resources and promoting judicial

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efficiency.” Costello, 765 F.Supp. at 1009.

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In the request for reconsideration, plaintiff disputes the finding that he does not meet the
imminent danger exception to the three strikes rule. In this action, plaintiff challenges the
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“unwanted administration of anti-psychotic drugs.” (ECF No. 1.) Plaintiff alleges that he

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continues to suffer side effects from the challenged medication, including tremors or shakiness in

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his right hand. In the June 9, 2014 order, the undersigned found that these ongoing and relatively

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minor side effects did not meet the imminent danger exception. (ECF No. 4.)

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In the pending motion, plaintiff reasserts that he suffers from tremors or shakiness in his

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right hand. (ECF No. 7.) Plaintiff also alleges that continued consumption of the drugs increases

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the risk of tardive dyskinesia. (Id.) Plaintiff does not allege that he has contracted this disease.

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After reviewing plaintiff’s request for reconsideration, the undersigned finds that plaintiff has not

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demonstrated that he meets the imminent danger exception to the three strikes rule set forth in 28

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U.S.C. § 1915(g).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s June 16, 2014 motion for reconsideration (ECF No. 7) is denied;

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2. Within thirty days from the date of this order, plaintiff shall submit the filing fee of

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$400;
3. Failure to comply with this order will result in dismissal of this action.
Dated: July 23, 2014

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Hen1171.rec

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