(PC) Solano v. Perez, et al

Filing 68

ORDER signed by District Judge Kimberly J. Mueller on 11/7/2017 DENYING #65 Motion for Reconsideration. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 No. 2:15-cv-01064-KJM-EFB P LIBRADO SOLANO, JR., 13 Plaintiff, 14 v. 15 ORDER PEREZ, et al., 16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 19 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 20 Judge in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The magistrate judge 21 recommended that this court grant defendants Perez, George and Peterson’s motion for summary 22 judgment based on qualified immunity. ECF No. 43 (filed Feb. 7, 2017). This court declined to 23 adopt that recommendation, and instead denied summary judgment finding no qualified 24 immunity. Prior Order, ECF No. 64 (filed Sept. 29, 2017). Defendants Perez, George and 25 Peterson now move the court to reconsider that decision. Motion, ECF No. 65; Reconsideration 26 Mem., ECF No. 65-1 (filed Oct. 4, 2017). As explained below, the court DENIES this motion. 27 28 1 1 A party may move to “alter or amend a judgment” within twenty-eight days of the 2 entry of the judgment. Fed. R. Civ. P. 59(e); see also Tripati v. Henman, 845 F.2d 205, 206 n.1 3 (9th Cir. 1988) (per curiam) (explaining a motion to amend the judgment “is a proper vehicle for 4 seeking reconsideration of a summary judgment ruling.”). Although the Rule does not list 5 specific grounds for such a motion, the Ninth Circuit has said that a Rule 59(e) motion may be 6 granted if “(1) the district court is presented with newly discovered evidence, (2) the district court 7 committed clear error or made an initial decision that was manifestly unjust, or (3) there is an 8 intervening change in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th 9 Cir. 2001). The court has “wide discretion” when considering such a motion. Turner v. 10 Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). The rule provides “an 11 ‘extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial 12 resources.’” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 13 James Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed. 2000)). 14 Here, defendants identify no newly discovered evidence, intervening changes in 15 the law, or any manifest injustice warranting reconsideration. Rather, they duplicate their 16 summary judgment arguments. Compare ECF No. 36 at 7-10 (arguing it was not clearly unlawful 17 to deny plaintiff a wheelchair because it was uncertain he needed one), with Reconsideration Mem. 18 at 4-5 (same). They also contend the court omitted certain issues. See Reconsideration Mem. at 5 19 (contending court did not address whether plaintiff had “a serious medical need for a wheelchair”); 20 but see Prior Order at 3-5 (highlighting factual disputes on this very issue). Finding no adequate 21 basis for reconsideration, the court DENIES defendants’ motion. 22 23 IT IS SO ORDERED. DATED: November 7, 2017. 24 25 UNITED STATES DISTRICT JUDGE 26 27 28 2

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