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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEENAN WILKINS,

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No. 2:16-cv-0347 KJM KJN P

Plaintiff,
v.

ORDER

PAUL GONZALES, et al.,

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Defendants.

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Plaintiff, a California prisoner proceeding pro se, has filed a motion asking that the

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court reconsider its March 31, 2017 order, ECF No. 33. Plaintiff seeks reconsideration of that

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portion of the order that dismissed Warden Jeff Macomber and Director Kelly Harrington as

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defendants and plaintiff’s equal protection claims and denied leave to file a third amended

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complaint. Plaintiff also seeks reconsideration of that part of the order that informed plaintiff that

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requests for court orders, including requests for appointment of counsel, must be made by motion

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prepared in accordance with the requirements of Fed. R. Civ. P. 7(b) and Local Rule 230(l)

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(E.D.Cal.).

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A district court may reconsider a ruling under either Federal Rule of Civil

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Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d

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1255, 1262 (9th Cir. 1993). Generally speaking, “[r]econsideration is appropriate if the district

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court (1) is presented with newly discovered evidence, (2) committed clear error or the initial
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decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. at

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1263.

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Defendant Macomber was dismissed from this action on the ground that there was

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nothing in plaintiff’s grievances, and no other allegations, that showed defendant Macomber “had

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knowledge of [plaintiff’s] retaliation claim against the defendants who imposed the visitation

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restriction.” ECF No. 19 at 14; ECF No. 20; ECF No. 33. The additional letters attached to

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plaintiff’s motion for reconsideration do not change this finding or the court’s reasons for

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dismissing defendant Macomber, nor do they support a finding that plaintiff should have been

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granted leave to amend as to defendant Macomber.

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Defendant Harrington was dismissed because plaintiff had “not pled sufficient

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facts demonstrating” the involvement of defendant Harrington in the events complained of. ECF

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No. 19 at 15-16; ECF No. 20; ECF No. 33. The letters attached to plaintiff’s motion for

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reconsideration do not cure this defect, nor do they support a finding that plaintiff should have

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been granted leave to amend as to defendant Harrington. Only one of the letters predates the

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filing of this action, and that letter contains only general assertions that are not sufficient to

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support a finding that defendant Harrington was involved in the events complained of.

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Finally, there is no basis for reconsideration of that part of the court’s order that

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instructed plaintiff concerning the proper procedure for requesting court orders, including

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appointment of counsel.

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In accordance with the above, IT IS HEREBY ORDERED that upon

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reconsideration, the court’s March 31, 2017 order, ECF No. 33, is confirmed. This order resolves

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plaintiff’s motion for reconsideration, ECF No. 37.

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DATED: August 9, 2017.

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UNITED STATES DISTRICT JUDGE

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