Wilkins v. Gonzalez, et al.
ORDER signed by District Judge Kimberly J. Mueller on 8/9/2017 CONFIRMING 33 Order Adopting Findings and Recommendations. This Order resolves 37 Motion for Reconsideration. (Donati, J)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-0347 KJM KJN P
PAUL GONZALES, et al.,
Plaintiff, a California prisoner proceeding pro se, has filed a motion asking that the
court reconsider its March 31, 2017 order, ECF No. 33. Plaintiff seeks reconsideration of that
portion of the order that dismissed Warden Jeff Macomber and Director Kelly Harrington as
defendants and plaintiff’s equal protection claims and denied leave to file a third amended
complaint. Plaintiff also seeks reconsideration of that part of the order that informed plaintiff that
requests for court orders, including requests for appointment of counsel, must be made by motion
prepared in accordance with the requirements of Fed. R. Civ. P. 7(b) and Local Rule 230(l)
A district court may reconsider a ruling under either Federal Rule of Civil
Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993). Generally speaking, “[r]econsideration is appropriate if the district
court (1) is presented with newly discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. at
Defendant Macomber was dismissed from this action on the ground that there was
nothing in plaintiff’s grievances, and no other allegations, that showed defendant Macomber “had
knowledge of [plaintiff’s] retaliation claim against the defendants who imposed the visitation
restriction.” ECF No. 19 at 14; ECF No. 20; ECF No. 33. The additional letters attached to
plaintiff’s motion for reconsideration do not change this finding or the court’s reasons for
dismissing defendant Macomber, nor do they support a finding that plaintiff should have been
granted leave to amend as to defendant Macomber.
Defendant Harrington was dismissed because plaintiff had “not pled sufficient
facts demonstrating” the involvement of defendant Harrington in the events complained of. ECF
No. 19 at 15-16; ECF No. 20; ECF No. 33. The letters attached to plaintiff’s motion for
reconsideration do not cure this defect, nor do they support a finding that plaintiff should have
been granted leave to amend as to defendant Harrington. Only one of the letters predates the
filing of this action, and that letter contains only general assertions that are not sufficient to
support a finding that defendant Harrington was involved in the events complained of.
Finally, there is no basis for reconsideration of that part of the court’s order that
instructed plaintiff concerning the proper procedure for requesting court orders, including
appointment of counsel.
In accordance with the above, IT IS HEREBY ORDERED that upon
reconsideration, the court’s March 31, 2017 order, ECF No. 33, is confirmed. This order resolves
plaintiff’s motion for reconsideration, ECF No. 37.
DATED: August 9, 2017.
UNITED STATES DISTRICT JUDGE
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