Wilkins v. Gonzalez, et al.

Filing 54

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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, 12 13 14 No. 2:16-cv-0347 KJM KJN P Plaintiff, v. ORDER PAUL GONZALES, et al., 15 Defendants. 16 Plaintiff, a California prisoner proceeding pro se, has filed a motion asking that the 17 18 court reconsider its March 31, 2017 order, ECF No. 33. Plaintiff seeks reconsideration of that 19 portion of the order that dismissed Warden Jeff Macomber and Director Kelly Harrington as 20 defendants and plaintiff’s equal protection claims and denied leave to file a third amended 21 complaint. Plaintiff also seeks reconsideration of that part of the order that informed plaintiff that 22 requests for court orders, including requests for appointment of counsel, must be made by motion 23 prepared in accordance with the requirements of Fed. R. Civ. P. 7(b) and Local Rule 230(l) 24 (E.D.Cal.). 25 A district court may reconsider a ruling under either Federal Rule of Civil 26 Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 27 1255, 1262 (9th Cir. 1993). Generally speaking, “[r]econsideration is appropriate if the district 28 court (1) is presented with newly discovered evidence, (2) committed clear error or the initial 1 1 decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. at 2 1263. 3 Defendant Macomber was dismissed from this action on the ground that there was 4 nothing in plaintiff’s grievances, and no other allegations, that showed defendant Macomber “had 5 knowledge of [plaintiff’s] retaliation claim against the defendants who imposed the visitation 6 restriction.” ECF No. 19 at 14; ECF No. 20; ECF No. 33. The additional letters attached to 7 plaintiff’s motion for reconsideration do not change this finding or the court’s reasons for 8 dismissing defendant Macomber, nor do they support a finding that plaintiff should have been 9 granted leave to amend as to defendant Macomber. 10 Defendant Harrington was dismissed because plaintiff had “not pled sufficient 11 facts demonstrating” the involvement of defendant Harrington in the events complained of. ECF 12 No. 19 at 15-16; ECF No. 20; ECF No. 33. The letters attached to plaintiff’s motion for 13 reconsideration do not cure this defect, nor do they support a finding that plaintiff should have 14 been granted leave to amend as to defendant Harrington. Only one of the letters predates the 15 filing of this action, and that letter contains only general assertions that are not sufficient to 16 support a finding that defendant Harrington was involved in the events complained of. 17 Finally, there is no basis for reconsideration of that part of the court’s order that 18 instructed plaintiff concerning the proper procedure for requesting court orders, including 19 appointment of counsel. 20 In accordance with the above, IT IS HEREBY ORDERED that upon 21 reconsideration, the court’s March 31, 2017 order, ECF No. 33, is confirmed. This order resolves 22 plaintiff’s motion for reconsideration, ECF No. 37. 23 DATED: August 9, 2017. 24 25 UNITED STATES DISTRICT JUDGE 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?