Diaz v. McGee et al

Filing 15

ORDER denying 12 Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e). Signed by Judge Larry Alan Burns on 2/20/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALD C. DIAZ,

Case No.: 3:17-cv-01772-LAB-BLM

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ORDER DENYING MOTION TO
ALTER OR AMEND JUDGMENT
PURSUANT TO
Fed. R. Civ. P. 59(e)

Plaintiff,

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vs.

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N. McGEE, et al.,

[ECF No. 12]
Defendants.

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Ronald Diaz (“Plaintiff”) proceeding pro se and in forma pauperis (“IFP”), has filed

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a motion for reconsideration (ECF No. 12) of the Court’s January 29, 2018 Order

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dismissing his Second Amended Complaint (“SAC”) for failing to state a claim upon which

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relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) (ECF No. 9).

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///
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3:17-cv-01772-LAB-BLM

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I.

Plaintiff’s Motions to Alter or Amend Judgment

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Plaintiff has filed a Motion requesting that this Court “reconsider amending or

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altering [their] judgment.” (ECF No. 12 at 1.) Specifically, Plaintiff indicates that he has

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a learning disability and he should be granted a “3rd time to amend his Complaint.” (Id.)

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Plaintiff also claims he “believes he did a good job stating his claims on how defendants

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violated his constitutional rights and does not know how and why the court keeps claiming

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he did not or failed to state a claim.” (Id.)

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II.

Standard of Review

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“A Rule 59(e) motion may be granted if ‘(1) the district court is presented with newly

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discovered evidence, (2) the district court committed clear error or made an initial decision

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that was manifestly unjust, or (3) there is an intervening change in controlling law.’”

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Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City of

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Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a substantive

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change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988)

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(quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)), and “is

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an extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197

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F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to “‘relitigate old matters,

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or to raise arguments or present evidence that could have been raised prior to the entry of

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judgment.’” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1117 (D. Nev.

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2013) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d

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ed. 1995)).

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Plaintiff’s motion does not seek reconsideration based on newly discovered evidence

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or any intervening change in controlling law. See Ybarra, 656 F.3d at 998. Instead, Plaintiff

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appears to seek reconsideration on grounds that he believes he did a “good job” on stating

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his claims and he “is starting to think he is being retaliated against by [the] Court.” (ECF

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No. 12 at 1.)

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To the extent Plaintiff implies that the Court has failed to liberally construe his

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pleadings, “[p]ro se litigants must follow the same rules of procedure that govern other
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3:17-cv-01772-LAB-BLM

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litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali v. Moran,

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46 F.3d 52, 54 (9th Cir. 1995) (per curiam); Carter v. Comm’r, 784 F.2d 1006, 1008 (9th

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Cir. 1986). “The hazards which beset a layman when he seeks to represent himself are

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obvious. He who proceeds pro se with full knowledge and understanding of the risks does

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so with no greater rights than a litigant represented by a lawyer, and the trial court is under

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no obligation to become an ‘advocate’ for or to assist and guide the pro se layman through

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the trial thicket.” Jacobsen v. Filler, 790 F.2d 1362, 1365 n.5 (9th Cir. 1986) (quoting

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United States v. Pinkey, 548 F.2d 30, 311 (10th Cir. 1977)).

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“A motion for reconsideration may not be used to get a second bite at the apple.”

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Campion v. Old Repub. Home Protection Co., Inc., No. 09-CV-00748-JMA(NLS), 2011

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WL 1935967, at *1 (S.D. Cal. May 20, 2011). The purpose of Rule 59(e) is not to “give an

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unhappy litigant one additional chance to sway the judge. [A]rguments and evidence [that]

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were previously carefully considered by the Court, [ ] do not provide a basis for amending

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the judgment,” Kilgore v. Colvin, No. 2:12-CV-1792-CKD, 2013 WL 5425313 at *1 (E.D.

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Cal. Sept. 27, 2013) (internal quotations omitted), and “[m]ere doubt[] or disagreement

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about the wisdom of a prior decision” is insufficient to warrant granting a Rule 59(e)

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motion. Campion, 2011 WL 1935967 at *1 (quoting Hopwood v. Texas, 236 F.3d 256, 273

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(5th Cir. 2000)). For a decision to be considered “clearly erroneous” it must be “more than

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just maybe or probably wrong; it must be dead wrong.” Id. A “movant must demonstrate a

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‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Id.

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(quoting Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)); see also Garcia

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v. Biter, No. 1:13-CV-00599-LJO-SKO-PC, 2016 WL 3879251, at *2 (E.D. Cal. July 18,

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2016).

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Here, Plaintiffs’ Motion fails to demonstrate that this Court disregarded, misapplied,

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or failed to recognize any controlling precedent when it dismissed his SAC without further

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leave to amend. Id. Thus, because Plaintiff has failed to offer any valid basis upon which

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the Court might find its January 29, 2018 Order and Judgment of dismissal was erroneous

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or manifestly unjust, relief is not warranted under FED. R. CIV. P. 59(e).
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III.

Conclusion and Order

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Based on the foregoing, the Court:

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DENIES Plaintiff’s Motion to Alter or Amend Judgment pursuant to FED. R. CIV.

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P. 59(e) (ECF No. 12).

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The Clerk of Court shall close the file.

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IT IS SO ORDERED.

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Dated: February 20, 2018
Hon. Larry Alan Burns
United States District Judge

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