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Robert Garcia v. A. Masiel

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 10, 2011

ROBERT GARCIA,
PLAINTIFF,
v.
A. MASIEL, ET AL.,
DEFENDANTS.

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (ECF No. 85)

Plaintiff Robert Garcia ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint filed on December 3, 2007, against Defendant Ojeda for a violation of the Eighth Amendment and Defendant Silva for violations of the First and Eighth Amendments. Trial is set for November 15, 2011. On August 8, 2011, Plaintiff filed a motion seeking reconsideration of the second scheduling order, filed April 13, 2011, directing that he pay witness fees for the attendance of non-incarcerated witnesses at trial.

"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis in original). Plaintiff's motion is devoid of any ground entitling Plaintiff to reconsideration of the scheduling order.

The expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. See Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321 (1976)). As plaintiff was previously informed, the in forma pauperis status does not provide for the payment of witness fees or travel expenses, and the Court did not err in requiring Plaintiff to submit costs and fees for the attendance of witnesses. 28 U.S.C. § 1915; Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); Tedder, 890 F.2d at 211-12; Morgan v. Doran, 2007 WL 781903, No. CV-F-02-6316 AWI DLB P, *2 (E.D. Cal. Mar. 13, 2007); see Zamora v. Smith, 267 Fed. Appx. 602, 605 (9th Cir. 2008). Reconsideration is not appropriate.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion for reconsideration is DENIED.

IT IS SO ORDERED.

0m8i78

CHIEF UNITED STATES DISTRICT JUDGE

20110810

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