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Jones v. Burk

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 3, 2010

FREDERICK JONES, SR., PLAINTIFF,
v.
JOHN BURK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING MOTION

(Doc. 52)

Plaintiff Frederick Jones, Sr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's motion for reconsideration of the Court's March 26, 2009 order partially granting Defendants' motion to dismiss. (Docs. #50, 52.)

The Court granted Defendants' motion to dismiss with respect to Plaintiff's due process claims based on the loss of privileges in prison and denied Defendants' motion to dismiss with respect to Plaintiff's First Amendment claim premised on the deprivation of certain religious items. In his motion for reconsideration, Plaintiff argues that the Court erred in dismissing his due process claims.

Under Local Rule 230(j), any motion for reconsideration must demonstrate "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion" and "why the facts or circumstances were not shown at the time of the prior motion."

Plaintiff's motion for reconsideration is not based on any new or different facts that did not exist at the time of the prior motion. Plaintiff argues that his due process claims should not be dismissed because "fresh air" is not a "privilege" and that Defendants cannot deprive Plaintiff of fresh air without adequate due process. Plaintiff did not raise any claims in his complaint based on the denial of "fresh air" and Plaintiff did not make any argument in his opposition to Defendants' motion to dismiss based on the denial of "fresh air." Plaintiff's due process claims were construed to be based on the loss of privileges such as television, yard and canteen. Defendants argued that they were entitled to dismissal because the loss of those privileges did not implicate any constitutionally protected liberty interest. The Court granted Defendants' motion to dismiss based on that argument. Plaintiff attempts to save his due process claim by presenting new facts and arguments in his motion for reconsideration that should have been made in his complaint or his opposition to Defendants' motion to dismiss. Plaintiff has not explained why he did not present this new argument in his opposition or in his complaint. Plaintiff may not raise his new "fresh air" argument nor may Plaintiff raise a new "fresh air" due process claim via his motion for reconsideration. The remaining arguments in Plaintiff's motion are unclear and fail to address why Plaintiff is entitled to reconsideration or why Plaintiff is entitled to relief from the Court's order.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion for reconsideration, filed on April 10, 2009, is DENIED.

IT IS SO ORDERED.

20100203

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