Johnson v. Gonzales et al

Filing 18

ORDER Denying 16 Motion for Reconsideration. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

ROBERT EARLE JOHNSON,

4:15-cv-05034-EFS

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Plaintiff,
ORDER DENYING MOTION FOR
RECONSIDERATON

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v.
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ROY GONZALES, VICTORIA TAPIA, and
AMANDA WESTPHAL,

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Defendants.

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Before

the

Court

is

Plaintiff’s

Motion

for

Reconsideration

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pursuant to Rules 52(b), 59(e) and 60(b) of the Federal Rules of Civil

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Procedure, which was filed on November 9, 2015, ECF No. 16.

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a prisoner at the Coyote Ridge Corrections Center, is proceeding pro se

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and in forma pauperis.

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Motion was considered without oral argument on the date signed below.

Plaintiff,

Defendants were not served in this action.

The

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On October 16, 2015, the Court issued an Order dealing with two

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subjects: (1) a Motion by which Plaintiff sought a 90 to 120 day

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extension of time in order to exhaust administrative remedies regarding

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claims which arose after he filed this lawsuit and which he wished to

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add to his amended complaint; and (2) the dismissal of the First Amended

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Complaint containing Plaintiff’s exhausted claim asserting that, on a

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single occasion,

Defendant Tapia had rejected an internet generated

ORDER DENYING MOTION FOR RECONSIDERATON -- 1

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item which was allegedly falsely labeled as copyrighted materials.

A

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lengthy extension of time for the purpose of exhausting and then adding

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claims was not consistent with Cano v. Taylor, 739 F.3d 1214 (9th Cir.

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2014). The Court denied the motion and dismissed Plaintiff’s First

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Amended Complaint with prejudice for failure to state a claim upon which

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relief may be granted, ECF No. 12.

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Motions for reconsideration serve a limited function. “‘[T]he

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major grounds that justify reconsideration involve an intervening change

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of controlling law, the availability of new evidence, or the need to

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correct a clear error or prevent manifest injustice.’” Pyramid Lake

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Paiute Tribe v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989). Such

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motions are not the proper vehicle for offering evidence or theories of

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law that were available to the party at the time of the initial ruling.

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Fay Corp. v. Bat Holdings I, Inc., 651 F. Supp. 307, 309 (W.D. Wash.

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1987).

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Plaintiff argues that the Court mischaracterized his assertion

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regarding the allegedly improper handling of his legal mail over a month

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after he filed this lawsuit.

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particular claim.

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assert this claim, his challenges to DOC policies, and his claim against

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a different defendant which occurred three months after he initiated

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this action in a separate action after he had exhausted his available

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administrative

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documentation in any future action he files.

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that there is no reason to amend any findings under Rule 52(b), Federal

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Rules of Civil Procedure.

The Court, however, did not dismiss this

Rather, the Court instructed Plaintiff that he could

remedies.

Plaintiff

is

free

ORDER DENYING MOTION FOR RECONSIDERATON -- 2

to

use

his

supporting

Therefore, the Court finds

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Plaintiff has not alleged that there has been an intervening change

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of controlling law, although he contends that the “single incident”

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rationale

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However, neither the United States Supreme Court nor the Ninth Circuit

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has

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discovered evidence that would justify this Court taking a second look

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at the issue in question - the single mail rejection predicating this

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lawsuit. Thus, the only remaining question is whether the Court should

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alter its prior ruling in order to “correct a clear error or prevent

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manifest injustice.” Pyramid Lake, 882 F.2d at 369 n.5. The Court has

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already explained to Plaintiff that he is free to file a new and separate

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lawsuit with his newly exhausted claims.

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ruled

adopted

by

this

differently.

Accordingly,

IT

Court

is

Likewise,

IS

not

Ninth

Plaintiff

ORDERED

that

has

Circuit

not

Plaintiff’s

offered

Motion

newly

for

Reconsideration, ECF No. 16, is DENIED.
IT IS SO ORDERED. The Clerk of Court is directed to enter this
Order and forward a copy to Plaintiff.
DATED this

17th

The file shall remain closed.

day of December 2015.

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precedent.

s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2015\prisoner15cv5034-12-15-dnymtn.docx

ORDER DENYING MOTION FOR RECONSIDERATON -- 3