Sandoval v. Barneburg et al

Filing 60

ORDER by Judge Lucy H. Koh denying 59 Motion to Alter Judgment (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 5/2/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALFRED ARTHUR SANDOVAL,

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Plaintiff,
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v.
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CORRECTIONAL SGT. D. BARNEBURG, )
et al.,
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Defendants.
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No. C 12-3007 LHK (PR)
ORDER DENYING
PLAINTIFF’S MOTION TO
ALTER OR AMEND
JUDGMENT
(Docket No. 59)

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42

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U.S.C. § 1983. On November 7, 2013, the court granted defendants’ motion to reconsider the

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court’s order denying defendants’ motion to dismiss based on untimeliness. The court dismissed

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this action based on untimeliness, and entered judgment for defendants. Plaintiff has filed a

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motion to alter or amend the judgment, pursuant to Federal Rule of Civil Procedure 59.

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A motion for reconsideration under Rule 59(e) “‘should not be granted, absent highly

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unusual circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the law.’” McDowell v. Calderon,

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197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). Evidence is not newly

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discovered for purposes of a Rule 59(e) motion if it was available prior to the district court’s

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ruling. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (affirming district court’s
Order Denying Plaintiff’s Motion to Alter or Amend Judgment
P:\PRO-SE\LHK\CR.12\Sandoval007precon.wpd

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denial of habeas petitioner’s motion for reconsideration where petitioner’s evidence of

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exhaustion was not “newly discovered” because petitioner was aware of such evidence almost

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one year prior to the district court’s denial of the petition).

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Liberally construed, plaintiff does not argue that he should receive reconsideration based
on any of the above factors. Accordingly, plaintiff’s motion for reconsideration is DENIED.
IT IS SO ORDERED.
DATED:

5/2/14
LUCY H. KOH
United States District Judge

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Order Denying Denying Plaintiff’s Motion for Reconsideration; Dismissing Defendants
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P:\PRO-SE\LHK\CR.12\Sandoval007precon.wpd