(PC) Ruiz v. Bodukam et al

Filing 31

ORDER signed by District Judge Troy L. Nunley on 4/26/2021 DENYING 29 Motion to Appoint Counsel, Motion for Reconsideration, and DENYING 30 Motion to Appoint Counsel. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

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No. 2:19-cv-00146-TLN-DMC

Plaintiff,

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v.

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ORDER

VIJAY BODUKMAN, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. Pending before the Court are Plaintiff’s motions for reconsideration of the Court’s

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September 15, 2020, final judgment and for appointment of counsel. (ECF Nos. 29, 30.)

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The Court may grant reconsideration under Federal Rules of Civil Procedure 59(e) and

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60. Generally, a motion for reconsideration of a final judgment is appropriately brought under

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Federal Rule of Civil Procedure 59(e). See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th

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Cir. 1985) (discussing reconsideration of summary judgment); see also Schroeder v.

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

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twenty-eight (28) days after entry of the judgment.1 See Fed. R. Civ. P. 59(e). Under Rule

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Pursuant to Houston v. Lack, 487 U.S. 266 (1988), for pro se prisoner litigants
seeking reconsideration, the Court calculates the 28-day period from the date the motion was
delivered to prison authorities for mailing to the court. Otherwise, the 28-day period is
calculated based on the date the motion for reconsideration is actually filed.
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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.2 See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D.

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Cal. 1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486

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U.S. 1015 (1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.

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1999); accord 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 order

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

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

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leave of the appellate court is required to correct clerical mistakes while the appeal is pending.

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See id.

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

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based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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

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entry of judgment; and (3) fraud, misrepresentation, or misconduct of an opposing party. See

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Fed. R. Civ. P. 60(b)(1)–(3). A motion for reconsideration on any of these grounds must be

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brought within one year of entry of judgment or the order being challenged. See Fed. R. Civ. P.

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60(c)(1). Under Rule 60(b), the Court may also grant reconsideration if: (1) the judgment is

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void; (2) the judgement has been satisfied, released, or discharged, an earlier judgment has been

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reversed or vacated, or applying the judgment prospectively is no longer equitable; and (3) any

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other reason that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6). A motion for reconsideration

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on any of these grounds must be brought “within a reasonable time.” Fed. R. Civ. P. 60(c)(1).
Having reviewed both of Plaintiff’s motions, the Court finds no basis for reconsideration

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of the September 15, 2020, final judgment.

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///

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If reconsideration is sought based on new evidence which could not have been discovered
through due diligence in time to move for reconsideration under Rule 59(e), relief may be
available under Federal Rule of Civil Procedure 60(b)(2). A motion under Rule 60(b)(2) may not
be brought more than one year after entry of judgment.
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Accordingly, it is hereby ORDERED that Plaintiff’s motions are DENIED. (ECF Nos.

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29, 30.)

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DATED: April 26, 2021

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Troy L. Nunley
United States District Judge

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