Alvarez v. State of California et al

Filing 31

ORDER signed by District Judge Kimberly J. Mueller on 1/05/17 ordering plaintiff's Rule 59 and 60(b) motions 28 , 29 are denied. Plaintiff's motion for a certificate of appealability 30 is denied as unnecessary. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO ALVAREZ,

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No. 2:14-cv-1181-KJM-EFB P

Plaintiff,
v.

ORDER

STATE OF CALIFORNIA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. On September 28, 2016, the court dismissed this action under 28 U.S.C.

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§ 1915A for failure to state a claim upon which relief could be granted. ECF No. 26. Judgment
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was duly entered. ECF No. 27. Plaintiff now seeks relief from judgment pursuant to Rules 59
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and 60(b) of the Federal Rules of Civil Procedure. ECF Nos. 28, 29. Plaintiff also moves for a
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certificate of appealability. ECF No. 30.
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Under Rule 59(e), three grounds may justify reconsideration: (1) an intervening change in
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controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or
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prevent manifest injustice. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656,
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665 (E.D. Cal. 1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987); see also 389
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Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); accord School Dist. No. 1J
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v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Courts construing Federal Rule of Civil
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Procedure 59(e) 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 addition, Rule 60(b) provides:

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On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b).
“A motion for reconsideration should not be granted, absent highly unusual

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

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error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v.

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Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). Further, Local Rule 230(j)

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requires that a motion for reconsideration state “what new or different facts or circumstances are

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claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the time of

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the prior motion.” E.D. Cal., Local Rule 230(j)(3)-(4).

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Plaintiff has not shown that the judgment entered against him was the result of excusable

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neglect or fraud, nor has he shown any other reason that would warrant relief from the judgment

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entered herein. Accordingly, his Rule 59 and 60 motions will be denied.

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A certificate of appealability is required to appeal from a final judgment in a habeas
corpus action. See 28 U.S.C. § 2253(c). It is not required in order to take an appeal from a final
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judgment in a civil rights action under 42 U.S.C. § 1983. Plaintiff’s motion for a certificate of

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appealability will be denied as unnecessary.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Rule 59 and Rule 60(b) motions (ECF Nos. 28, 29) are denied; and

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2. Plaintiff’s motion for a certificate of appealability (ECF No. 30) is denied as

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unnecessary.

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DATED: January 5, 2017.

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UNITED STATES DISTRICT JUDGE

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