ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
Plaintiff, Randall E. Ellis ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 19, 2010, the Magistrate Judge issued Findings and Recommendations recommending that Defendant Drew's motion for summary judgment be granted and that Plaintiff's motion to strike be denied which was served on the parties and contained notice that any objections to the Findings and Recommendations were to be filed within thirty days. (Doc. 162.) Plaintiff requested and received a forty-five day extension of time, allowing him until January 11, 2011 to file his objections. (Docs. 163, 164.) On January 11, 2011, Plaintiff filed two separate documents identified as objections to the Findings and Recommendations -- one fifty-two pages long and the other thirty-nine pages long. (Docs. 165, 167.) *fn1 On March 8, 2011, the Magistrate Judge issued an order (hereinafter "the Striking Order") striking Plaintiff's multiple objections (Docs. 165, 167) and allowing Plaintiff thirty (30) days to file a single document containing his objections. (Doc. 169.) On May 13, 2011, Plaintiff filed a "Motion for Reconsideration of New Evidence" *fn2 wherein he requests the District Judge review the Striking Order. (Doc. 173.)
B. Plaintiff's Motion for Reconsideration
In his motion, Plaintiff argues that his objections entered as Doc. 165 should not have been stricken since they contained new evidence which should be considered with his objections to the Findings and Recommendations. ( Id. ) While Plaintiff concedes that he should not have filed Doc. 167 and that it was appropriately stricken from the record, he argues that Doc. 165 should not have been struck as it did not raise new legal theories. ( Id. , at p. 1.) Plaintiff further argues that since the Magistrate Judge cited Greenlow v. Secretary of HHg , 863 F.2d 633, 638-39 (9th Cir. 1986) his documents must have been struck from the record on the assumption that they presented new legal theories. ( Id.
C. Standards for Reconsideration
The Federal Magistrates Act *fn3 provides the standards for review of Magistrate Judge orders by a District Judge. On nondispositive matters, a Magistrate Judge's order is reviewed to ascertain whether it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); see also Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate , 596 F.3d 1036, n. 4 (9th Cir. 2010) (ref. Maisonville v. F2 America, Inc. , 902 F.2d 746, 747-48 (9th Cir. 1990)); Rivera v. NIBCO, Inc. , 364 F.3d 1057, 1063 (9th Cir. 2004). "The district court reviews 'the magistrate's order for clear error.'" Grimes v. City and County of San Francisco , 951 F.2d 236, 241 (9th Cir. 1991) (quoting Maisonville , 902 F.2d at 748). "Pretrial orders of a magistrate under 636(b)(1)(A) are reviewable under the 'clearly erroneous and contrary to law' standard; they are not subject to de novo determination. . . ." Id. (quoting Merritt v. International Broth. Of Boilermakers , 649 F.2d 1013, 1017 (5th Cir. 1981). A District Court's denial of reconsideration of a Magistrate Judge's nondispositive order is reviewed under that same standard. Osband v. Wooford , 290 F.3d 1036, 1041 (9th Cir. 2002) (citing Brown v. Wesley's Quaker Maid, Inc. , 771 F.2d 952, 954 (6th Cir. 1985). The decision as to whether a Magistrate Judge's decision was clearly erroneous or contrary to law is "well within the discretion of the district court." Thornton v. McClatchy Newspapers, Inc. , 261 F.3d 789, 799 (9th Cir. 2001) ( ref. Ascon Props., Inc. v. Mobil Oil Co. , 866 F.2d 1149, 1161 (9th Cir. 1989)). Further, "[t]he reviewing court may not simply substitute its judgment for that of the deciding court." Grimes , 951 F.2d at 241 (citing United States v. BNS, Inc. , 858 F.2d 456, 464 (9th Cir.1988)). Accordingly, the Striking Order is subject to reconsideration only if it is clearly erroneous or contrary to law.
Courts are necessarily vested with control "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers v. NASCO, Inc. , 501 U.S. 32, 43 (1991) (quoting Link v. Wabash R. Co. , 370 U.S. 626, 630-31 (1962)). Orders such as the Striking Order fall well within the vested control of a trial court to control it's docket and to ensure efficient use of limited judicial resources. Such orders are not out of the ordinary for Magistrate Judges, or for that matter, District Judges, to issue.
Plaintiff apparently erroneously interpreted the Magistrate Judge's citing of Greenlow v. Secretary of HHg , 863 F.2d 633, 638-39 (9th Cir. 1986) to mean that the Magistrate Judge struck his objections because he was attempting to raise new legal theories. However, the Striking Order made no such findings. In fact, it rather specifically stated that no attempt had been made to distill and/or distinguish nuances of the stricken documents. The Striking Order did nothing more with the case citations than provide parameters to guide Plaintiff in drafting his subsequent, single objecting document.
The Striking Order was neither clearly erroneous nor contrary to law.
Further, Plaintiff's motion to reconsider the Striking Order was
untimely. "A party may serve and file objections to the [magistrate
judge's nondispositive] order within 14 days after being served with a
copy. A party may not assign as error a defect in the order not timely
objected to. The district judge in the case must consider timely
objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a);
see also U.S. v. Albonce-Barrera , 257 F.3d 959, 967 (9th
Cir. 2001); L.R. 303(b). The Striking Order issued on March 8, 2011.
(Doc. 169.) Thus, to be timely, Plaintiff should have given his motion
for reconsideration to prison staff for mailing *fn4
no later than March 22, 2011. However, Plaintiff dated
his signature on his motion for reconsideration May 16, 2011, and his
proof of service thereof is dated May 9, 2011. (Doc. 173.) Without
addressing the obvious discrepancies (one cannot sign a document seven
days after it has been mailed), neither of the dates on Plaintiff's
motion for reconsideration show compliance with the required fourteen
(14) day filing time limit. Fed. R. Civ. P. 72(a); L.R.303(b).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(A) this Court has reviewed Plaintiff's motion for reconsideration and finds both that the Striking Order was neither clearly erroneous, nor ...