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Toni D. Levingston v. California Department of Corrections and Rehabilitation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 15, 2011

TONI D. LEVINGSTON,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.

ORDER DENYING MOTIONS

(Docs. 34, 35)

Plaintiff Toni D. Levingston ("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 are two motions requesting reconsideration of the order closing this action. (Docs. #34, 35.)

Federal Rule of Civil Procedure 60 governs the reconsideration or relief from a final judgment, order or proceeding. Under Rule 60(b), the Court may relief a party from a final judgment, order, or proceeding on the grounds of "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . (3) fraud . . . or (6) any other reason that justifies relief." Federal Rule of Civil Procedure 60(b)(1)-(6). 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). A motion for reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). When requesting reconsideration, Local Rule 230(j) requires a party to show "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 complaint was dismissed and this action was closed on August 25, 2010 when the Court granted Defendants' motion to dismiss based on Plaintiff's failure to exhaust his administrative remedies prior to filing suit. Defendants' filed their motion to dismiss on March 4, 2010. (Doc. #23.) Plaintiff failed to file an opposition. On June 21, 2010, the Court issued a Findings and Recommendations recommending that the motion to dismiss be granted. (Doc. #30.) The Findings and Recommendations were adopted on August 25, 2010. (Doc. #32.)

In his motions for reconsideration, Plaintiff informs the Court that he was arrested on February 25, 2010. Plaintiff was taken to the Deuel Vocational Institution on March 19, 2010. Plaintiff was transferred to Corcoran State Prison on May 5, 2010 and currently is incarcerated there. Plaintiff claims that reconsideration is warranted because he did not receive the Court's Findings and Recommendations due to the transfers.

Plaintiff has failed to demonstrate grounds to reconsider the order closing this action. Plaintiff does not allege that he did not receive Defendants' motion to dismiss and fails to explain why he did not file an opposition to Defendants' motion to dismiss. Further, Plaintiff's allegations regarding his re-incarceration and prison transfers are unavailing because it is Plaintiff's responsibility to keep the Court apprised of his current address. Plaintiff did not receive the Court's Findings and Recommendations because Plaintiff failed to file a notice of change of address with the Court until July 15, 2010.

Based on the foregoing, the Court HEREBY ORDERS that Plaintiff's motions for reconsideration are DENIED.

IT IS SO ORDERED.

0m8i78

CHIEF UNITED STATES DISTRICT JUDGE

20110215

© 1992-2011 VersusLaw Inc.



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