Wimberly v. Alician et al

Filing 24

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT denying 23 Motion to Amend/Correct ;. (Illston, Susan) (Filed on 3/31/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CRAIG ERVIN WIMBERLY, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 19-cv-08316-SI ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT v. Re: Dkt. No. 22 A. CUEVAS, Defendant. 12 13 On March 9, 2021, defendant’s motion for summary judgment was granted and the action 14 was dismissed because plaintiff failed to exhaust administrative remedies before filing suit. Plaintiff 15 now moves, under Federal Rule of Civil Procedure 59(e), to alter or amend the judgment. Docket 16 No. 22. A motion for reconsideration under Rule 59(e) ‘“should not be granted, absent highly 17 unusual circumstances, unless the district court is presented with newly discovered evidence, 18 committed clear error, or if there is an intervening change in the law.”’ McDowell v. Calderon, 197 19 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). Plaintiff does not meet this standard; 20 his Rule 59(e) motion simply further presses his argument (that a threat of retaliation made 21 administrative remedies unavailable) that the court already considered and rejected. The Rule 59 22 motion to alter or amend the judgment is DENIED. Docket No. 22. 23 24 25 26 27 28 IT IS SO ORDERED. Dated: March 31, 2021 ______________________________________ SUSAN ILLSTON United States District Judge

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