Levingston v. Hedgpeth et al

Filing 43

ORDER DENYING 41 MOTION to Refile Complaint While Asking the Court to Reinstate Plaintiff's Civil Complaint to Proceed in Pro-Se MOTION Requesting Court Fees to be Taken Off Inmate Trust Account filed by Byron Levingston. Signed by Judge Lucy H. Koh on 10/3/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 10/4/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BYRON LEVINGSTON,

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Plaintiff,
v.
A. HEDGPETH, et al.,
Defendants.

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No. C 12-4284 LHK (PR)
ORDER DENYING
PLAINTIFF’S MOTION FOR
RECONSIDERATION
(Docket No. 41)

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983. On July 9, 2013, the court granted defendants’ motion to revoke plaintiff’s in
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forma pauperis (“IFP”) status pursuant to 28 U.S.C. § 1915(g). Plaintiff has filed a motion to
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refile the complaint, reinstate plaintiff’s grant of IFP status, and requested that the court deduct
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the filing fee from plaintiff’s trust account. The court construes plaintiff’s motion as a motion
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for reconsideration. So construed, the motion is denied for the reasons stated below.
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Motions for reconsideration should not be frequently made or freely granted; they are not
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a substitute for appeal or a means of attacking some perceived error of the court. See Twentieth
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Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). “‘[T]he major
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grounds that justify reconsideration involve an intervening change of controlling law, the
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availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’”
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Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (quoting
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Order Denying Denying Plaintiff’s Motion for Reconsideration
G:\PRO-SE\LHK\CR.12\Levingston284recon.wpd

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United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)). Rule 60(b)

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provides for reconsideration where one or more of the following is shown: (1) mistake,

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inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due

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diligence could not have been discovered before the court’s decision; (3) fraud by the adverse

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party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason

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justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993).

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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:

10/3/13
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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G:\PRO-SE\LHK\CR.12\Levingston284recon.wpd