Jackson v. Galang et al

Filing 103

ORDER signed by District Judge John A. Mendez on 9/27/18 DENYING 88 Motion for Reconsideration as premature. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS VAUGHN JACKSON, JR.,

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No. 2:15-CV-1675-JAM-CMK-P

Plaintiff,
v.

ORDER

M. DATOR,
Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is plaintiff’s motion for reconsideration (Doc. 88) of the

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court’s April 25, 2018, non-final order dismissing some, but not all, defendants from this action.

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The court may grant reconsideration of a final judgment under Federal Rules of

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Civil Procedure 59(e) and 60. Generally, a motion for reconsideration of a final judgment is

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appropriately brought under Federal Rule of Civil Procedure 59(e). See Backlund v. Barnhart,

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778 F.2d 1386, 1388 (9th Cir. 1985) (discussing reconsideration of summary judgment); see also

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Schroeder v. McDonald, 55 F.3d 454, 458-59 (9th Cir. 1995). The motion must be filed no later

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than twenty-eight (28) days after entry of the judgment. See Fed. R. Civ. P. 59(e). Under Rule

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59(e), three grounds may justify reconsideration: (1) an intervening change in controlling law;

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(2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest

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injustice. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal.
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1986), rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015

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(1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); accord

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School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Under Rule 60(a), the court may grant reconsideration of final judgments and any

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order based on clerical mistakes. Relief under this rule can be granted on the court’s own motion

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and at any time. See Fed. R. Civ. P. 60(a). However, once an appeal has been filed and

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docketed, leave of the appellate court is required to correct clerical mistakes while the appeal is

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pending. See id.

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Under Rule 60(b), the court may grant reconsideration of a final judgment and

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any order based on, among other things: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence which, with reasonable diligence, could not have been discovered

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within ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an

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opposing party. A motion for reconsideration on any of these grounds must be brought within a

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reasonable time and no later than one year of entry of judgment or the order being challenged.

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See Fed. R. Civ. P. 60(c)(1).

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In his motion for reconsideration, plaintiff argues that the Magistrate Judge erred

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by failing to consider the negligence aspect of his claims against defendants Horowitz, Galang,

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and Wong, and that the court should exercise supplemental jurisdiction over his negligence

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claims against these defendants. Because plaintiff’s motion challenges a non-final order and not a

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final judgment, his motion is not proper under Rule 59(e). Because plaintiff does not claim a

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clerical mistake in the April 25, 2018, order, the motion is also not proper under Rule 60(a).

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Because plaintiff does not claim mistake, inadvertence, surprise, or excusable neglect, newly

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discovered evidence which, with reasonable diligence, could not have been discovered within ten

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days of entry of judgment, or fraud, misrepresentation, or misconduct of an opposing party,

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plaintiff’s motion is not brought under Rule 60(b). Plaintiff’s argument that the court committed error by

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not exercising supplemental jurisdiction over any negligence claims is an argument properly brought

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under Rule 59(e), but is currently premature because no final judgment has been entered in this case.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration
(Doc. 88) is denied as premature.

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DATED: September 27, 2018

/s/ John A. Mendez
THE HONORABLE JOHN A. MENDEZ
UNITED STATED DISTRICT COURT JUDGE

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