Hammler v. Aviles

Filing 76

ORDER Denying Plaintiff's Motion for Reconsideration (Doc. No. 75 ). Signed by Judge Anthony J. Battaglia on 2/23/2022. (All non-registered users served via U.S. Mail Service)(jrm)

Case 3:17-cv-01185-AJB-WVG Document 76 Filed 02/23/22 PageID.709 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

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Case No.: 17-cv-01185-AJB-WVG
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

Plaintiff,

v.

(Doc. No. 75)

F. AVILES,
Defendant.

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Before the Court is pro se prisoner Allen Hammler’s (“Plaintiff”) motion for

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reconsideration. (Doc. No. 75.) Plaintiff requests that the Court reconsider its decision to

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adopt the Magistrate Judge’s Report and Recommendation (“R&R”) and grant Defendant’s

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motion for summary judgment. (Id. at 1.) For the reasons set forth below, the Court

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DENIES Plaintiff’s motion for reconsideration.

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Reconsideration is “an ‘extraordinary remedy, to be used sparingly in the interests

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of finality and conservation of judicial resources.’” Wood v. Ryan, 759 F.3d 1117, 1121

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(9th Cir. 2014) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

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2000). “[A] motion for reconsideration should not be granted, absent highly unusual

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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 controlling law.” Marlyn

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17-cv-01185-AJB-WVG

Case 3:17-cv-01185-AJB-WVG Document 76 Filed 02/23/22 PageID.710 Page 2 of 2

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Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

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(citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

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Plaintiff does not argue newly discovered evidence, clear error, or an intervening

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change in law. Instead, he requests reconsideration based solely on a claim that prison

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officials precluded him from filing objections to the Magistrate Judge’s R&R. (Doc. No.

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75 at 1.) According to Plaintiff, on January 4, 2022, prison officials forcefully removed

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him from his cell and made him leave his legal files inside. (Id. at 2.) Plaintiff further claims

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that when prison officials returned his documents to him on January 6, 2022, the R&R had

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“gone missing.” (Id. at 3.) He argues that because the R&R was missing, he did not know

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the deadline for filing objections. (Id. at 2–3.) The Court is unpersuaded.

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Plaintiff does not allege that he never received the R&R issued by the Magistrate

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Judge on November 23, 2021. (Doc. No. 72.) Moreover, the R&R was not returned to the

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Court as undeliverable. Thus, the Court finds that Plaintiff received the R&R in the normal

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course and was aware that the deadline to file his objections was December 30, 2021.

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Plaintiff’s receipt of the R&R is further supported by his description that it later went

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“missing.” (Doc. No. 75 at 3.) Critically, despite being aware of the December 30 deadline,

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Plaintiff made no request for an extension of time to file his objections. And because the

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prison officials’ alleged conduct occurred in January—after the filing deadline—it could

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not have been the reason for Plaintiff’s failure to file a timely objection.

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For the foregoing reasons, Plaintiff’s claim that prison officials precluded him from

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filing objections is without merit. Accordingly, there being no highly unusual

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circumstances warranting the extraordinary remedy of reconsideration, the Court DENIES

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Plaintiff’s motion. (Doc. No. 75.)

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IT IS SO ORDERED.
Dated: February 23, 2022

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