The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION (Docs. 11, 6)
Petitioner is a civil detainee who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on January 18, 2011 (doc. 4).
On February 4, 2011, the Court dismissed the petition because it did not state a claim that would entitle Petitioner to relief in a proceeding pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's motion for reconsideration of the dismissal of his petition, filed on February 17, 2011. Plaintiff states that he is proceeding pursuant to 28 U.S.C. § 2241, which he contends confers jurisdiction over the petition.
I. Jurisdiction to Consider the Motion for Reconsideration
On February 11, 2011, after the judgment of dismissal was entered but before the motion for reconsideration was filed, Petitioner filed a notice of appeal. *fn1
A motion for reconsideration is generally treated as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e) if it is filed within the time limit set by Rule 59(e). United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992). Otherwise, it is treated as a motion pursuant to Fed. R. Civ. P. 60(b) for relief from a judgment or order. American Ironworks & Erectors, Inc. v. North American Const. Corp., 248 F.3d 892, 989-99 (9th Cir. 2001).
A motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e) "must be filed no later than 28 days after the entry of the judgment." Fed. R. Civ. P. 59(e). Depending on the grounds for the motion, a motion for relief from a judgment pursuant to Rule 60(b) must be filed within a reasonable time or within a year. Fed. R. Civ. P. 60(c). Petitioner's motion was filed thirteen (13) days after the judgment of dismissal was entered. It is therefore timely under either category of motions.
Fed. R. App. P. 4, which sets time limits for filing a notice of appeal, provides that if a party files either a Rule 59(e) motion or a Rule 60(b) motion no later than twenty-eight (28) days after judgment, the time to file an appeal runs for all parties from the entry of the order disposing of the motion.
Fed. R. App. P. 4(a)(4)(A)(iv), (vi). Either motion thus tolls the time for filing an appeal.
Here, the motion was filed after Petitioner filed his notice of appeal. However, it is established that a district court retains subject matter jurisdiction to rule on a tolling motion even though a notice of appeal has been previously filed. Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988).
The Court concludes that it has jurisdiction to consider Petitioner's motion for reconsideration.
II. Motion for Reconsideration
A. Motion pursuant to Rule 59(e)
In an abundance of caution, the Court will consider the motion under both Rules 59(e) and 60(b). See, United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1130 (E.D. Cal. 2001).
Petitioner does not appear to state grounds sufficient to warrant relief pursuant to Fed. R. Civ. P. 59(e), which is appropriate when there are highly unusual circumstances, the district court is presented with newly discovered evidence, the district court committed clear error, or a change in controlling law intervenes. School Dist. No. 1J, Multnomah County, Oregon v. Acands, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). To avoid being frivolous, such a motion must provide a valid ground for reconsideration. See, MCIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986). Here, there is no claim of new evidence, highly unusual circumstances, or a change in controlling law. Further, Petitioner has not demonstrated clear error.
In the petition, Petitioner, a patient and civil detainee who is involuntarily confined at the Coalinga State Hospital, sued the hospital and two individual supervisors for monetary, declaratory, and injunctive relief, including wages and overtime compensation for labor that Petitioner alleged he was forced to perform in the hospital. (Pet. 1, 4.) Petitioner sought to have the Court certify his lawsuit as a class action. (Pet. 25.) Petitioner alleged that his rights under the Thirteenth Amendment were violated, and he further proceeded under the Fair Labor Standards Act, 29 U.S.C. § 201. (Pet. 4, 8.)
The Court concluded that Petitioner's allegations concerned his conditions of confinement, and not the legality or duration of his confinement. Thus, the petition was dismissed as not stating a claim warranting relief under 28 U.S.C. § 2254.
Petitioner argues that he proceeded pursuant to 28 U.S.C. § 2241, and that § 2241 confers upon this Court jurisdiction over his petition.
Title 28 U.S.C. § 2241 provides in pertinent part:
(c) The writ of habeas corpus shall not extend to a prisoner unless--
1) He is in custody under or by color of the authority of the United States of is committed for trial before some court thereof; or
2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a ...