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Funtanilla v. Tristan

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 26, 2009

GREGORIO C. FUNTANILLA, JR., PLAINTIFF
v.
DAVID TRISTAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DENYING MOTION FOR RECONSIDERATION, WITHOUT PREJUDICE (Doc. 207)

Plaintiff Gregorio C. Funtanilla, Jr. ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On February 12, 2009, Plaintiff filed a motion for reconsideration of the order dismissing Defendant Hanse from this action, filed January 26, 2009. Plaintiff claims that he was unable to file an Objection to the Magistrate Judge's Findings and Recommendations because he lacked access to his legal material, an issue addressed in a separate order issued concurrently with this order.

The Magistrate Judge's Findings and Recommendations recommending dismissal of Defendant Hanse was filed on October 30, 2008. Plaintiff filed a motion seeking an extension of time on November 24, 2008, and a thirty-day extension was granted by order filed December 4,2008. On January 26, 2009, the Findings and Recommendations was adopted and Defendant Hanse was dismissed.

Court have discretion to reconsider and vacate prior orders. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983), en banc. To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule 78-230(k) requires a party to show the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

Plaintiff's motion makes no showing that the Court erred in dismissing Defendant Hanse. After Plaintiff's property issues are resolved by the Magistrate Judge, Plaintiff may renew his motion.

Accordingly, Plaintiff's motion for reconsideration, filed February 12, 2009, is HEREBY ORDERED DENIED, without prejudice.

IT IS SO ORDERED.

20090226

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