Grandinetti v. Alexander et al

Filing 8

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND FOR INJUNCTIVE RELIEF re 7 Motion. Signed by JUDGE LESLIE E. KOBAYASHI on 10/26/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on October 27, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANCIS GRANDINETTI,
#A0185087,

)
)
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Plaintiff,
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vs.
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J. ALEXANDER, et al.,
)
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Defendants.
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_________________________ )

CIV. NO. 16-00480 LEK-KSC
ORDER DENYING MOTION FOR
RELIEF FROM JUDGMENT AND
FOR INJUNCTIVE RELIEF

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
AND FOR INJUNCTIVE RELIEF
The court dismissed this action on September 7,
2016, pursuant to 28 U.S.C. § 1915(g), without
prejudice to Plaintiff refiling his claims in a new
action with concurrent payment of the filing fees.
Order, ECF No. 5.
ECF No. 6.

See

Judgment entered September 9, 2016.

Plaintiff did not appeal.

Plaintiff now seeks relief from judgment pursuant
to Rules 52, 60, and 65 of the Federal Rules of Civil
Procedure.

Mot., ECF No. 7.

For the following

reasons, Plaintiff’s Motion is DENIED.

I.

RELIEF IS DENIED UNDER RULE 52

Plaintiff asks to submit “Additional Facts During
Appeal,” pursuant to Rule 52(b).

Mot., ECF No. 7.

Rule 52(b) states in pertinent part:
Amended or Additional Findings. On a party’s
motion filed no later than 28 days after the
entry of judgment, the court may amend its
findings – or make additional findings – and
may amend the judgment accordingly.
(emphasis added).

Plaintiff has not filed an appeal

and his Motion is untimely.

To the extent he seeks

relief under Rule 52(b), Plaintiff’s Motion is DENIED.
II.

RELIEF IS DENIED UNDER RULE 60

Plaintiff seeks “One-year review” under Rule 60.
Mot., ECF No. 7.

Rule 60(b) provides for relief from a

final judgment, order or proceeding “upon a showing of
(1) mistake, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud; (4) a void judgment;
(5) a satisfied or discharged judgment; or (6)
‘extraordinary circumstances’ which would justify
relief.”

Sch. Dist. No. 1J, Multnomah Cty. v. ACandS,

Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Motions made

under Rule 60(b) must be made “within a reasonable
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time–and for reasons (1), (2), and (3), no more than a
year after entry of the judgment or order or the date
of the proceeding.”
Motions for reconsideration are not a substitute
for appeal and should be infrequently made and granted.
See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637
F.2d 1338, 1341 (9th Cir. 1981); see also Tierney v.
Abercrombie, 2012 WL 4502454, at *2 (D. Haw. Sept. 28,
2012) (discussing “serial filing of frivolous motions
for reconsideration”).
Plaintiff did not appeal this court’s decision and
may not seek reconsideration for any issue that he
could have brought on appeal.

To the extent he seeks

reconsideration under reasons (1), (2), and (3), more
than a year has passed since judgment entered and his
Motion is untimely.

Plaintiff presents no other

coherent, persuasive reason for the court to amend its
Order, make additional findings, or reconsider its
ruling.

To the extent he seeks relief under Rule 60,

Plaintiff’s Motion is DENIED.

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III.

RELIEF IS DENIED UNDER RULE 65

Plaintiff claims “Injuries” under Rule 65, which
relates to the court’s authority to issue injunctive
relief.

Mot., ECF No. 7.

“[I]njunctive relief [is] an

extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such
relief.”

Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008).

To be entitled to a temporary

restraining order or injunctive relief “the [moving]
party [must] demonstrate ‘that he is likely to succeed
on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an
injunction is in the public interest.’”

Stormans, Inc.

v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)
(quoting Winter, 555 U.S. at 20); see also Center for
Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir.
2011) (“After Winter, ‘plaintiffs must establish that
irreparable harm is likely, not just possible, in order
to obtain a preliminary injunction.”).

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Plaintiff does not establish that there are serious
questions going to the merits of his claims, or that he
was in imminent danger of serious physical injury when
he filed this action more than a year ago.

Plaintiff’s

Motion for injunctive relief brought pursuant to Rule
65 is DENIED.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, October 26, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Grandinetti v. Alexander, 1:16-cv-00480 LEK-KSC; psa recon 2017 (FRCP 52, 60, 65)

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