Dicey v. Hanks et al

Filing 55

ORDER signed by District Judge John A. Mendez on 3/29/17 ORDERING that plaintiff's 50 motion to amend or alter the judgment under Federal Rule of Civil Procedure 59(e) is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERLAN LYNELL DICEY,

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Plaintiff,

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No. 2:14-cv-2018 JAM AC P

v.

ORDER

W. HANKS, et al.,

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Defendants.

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On April 26, 2016,1 plaintiff filed a motion to amend or alter the judgment under Federal

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Rule of Civil Procedure 59(e). ECF No. 50.

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

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

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

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Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993)). Further, Local Rule 230(j) requires that a motion for

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reconsideration state “what new or different facts or circumstances are claimed to exist which did

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not exist or were not shown upon such prior motion, or what other grounds exist for the motion;

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and . . . why the facts or circumstances were not shown at the time of the prior motion.” L.R.

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Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox
rule. See Houston v. Lack, 487 U.S. 266, 276 (1988).

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230(j)(3)-(4).
Plaintiff’s motion to alter or amend the judgment does not put forth any new evidence or

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law and merely rehashes the arguments previously made in his responses to the motion to dismiss

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and motion for summary judgment. Compare ECF Nos. 26 and 38 with ECF No. 50. While his

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request for judicial notice attempts to establish a change in the controlling law (ECF No. 53), that

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attempt fails. Even if the case plaintiff directs the court to constituted a new law, it is

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inapplicable to the situation here. The case plaintiff cites addresses whether use of the prison’s

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institutional mail to submit an appeal was appropriate. In re Andres, 198 Cal. Rptr. 3d 878, 887

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(Cal. Ct. App. 2016). In this case, the court did not find that plaitniff’s use of the prison’s

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institutional mail was improper, but that he had deliberately directed his appeal to the wrong

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person, resulting in its untimely receipt by the appeals coordinator. ECF No. 43 at 7-10.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to amend or alter the

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judgment under Federal Rule of Civil Procedure 59(e) (ECF No. 50) is denied.

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DATED: March 29, 2017

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/s/ John A. Mendez________________________

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UNITED STATES DISTRICT COURT JUDGE

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