The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION ECF No. 62
Plaintiff Eric Charles Rodney Knapp ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 12132 (the Americans with Disabilities Act (ADA)), and 29 U.S.C.§ 794 (Rehabilitation Act (RA)) on November 20, 2008. On September 8, 2010, Plaintiff's second amended complaint was dismissed with leave to amend. (ECF No. 33). On September 29, 2010, Plaintiff filed a third amended complaint. (ECF No. 37.) On February 4, 2011, Plaintiff filed a motion for reconsideration of the order issued on September 8, 2010, based upon the decision in Rhodes v Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010). (ECF No.44.) Based on the decision in Rhodes, on February 14, 2011, the Court granted reconsideration and Plaintiff was ordered to file a amended complaint, allowing Plaintiff to allege new and newly exhausted claims, within sixty days and sought appointment of counsel for Plaintiff. (ECF No. 45, 46.) Counsel was appointed and withdrew on March 16, 2011. (ECF No. 47.) On April 18, 2011, the Court appointed new counsel. (ECF No. 51.) On July 27, 2011, the Court granted counsel's request to withdraw as attorney of record. (ECF No. 59.)
On August 8, 2011, the Court screened Plaintiff's third amended complaint and found cognizable claims. Plaintiff was granted leave to file a supplemental complaint alleging new and newly exhausted claims that could be joined pursuant to Federal Rule of Civil Procedure 18. (ECF No. 60.) Plaintiff filed a motion for reconsideration on August 22, 2011. (ECF No. 62.)
Plaintiff brings his motion requesting reconsideration by a District Court Judge. Plaintiff argues that screening the third amended complaint was clearly erroneous and contrary to law because the prior order had rendered it void; the dismissal of the second amended complaint was partly erroneous because of the holding in Rhodes; Plaintiff's claims should not have been dismissed with prejudice because a claim should not be dismissed unless it is absolutely clear that the deficiencies could not be cured by amendment; and if the Court declines to reconsider the order, Plaintiff requests the Court certify an interlocutory appeal.
II. Motion for Reconsideration
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, "[o]n motion and just terms, the court may relieve a party . . .from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; . . . or (6) any other reason that justifies relief." Fed. R. Civ. Proc. 60(b). Where none of these factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991).
Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show "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."
"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) (internal quotations marks and citations omitted) (emphasis in original).
B. Reconsideration by District Court Judge
Initially, the Court shall address Plaintiff's request for reconsideration by a District Court Judge. On December 1, 2008, Plaintiff filed a notice of consent to the jurisdiction of the Magistrate Judge. (ECF No. 5.) Once a civil case is referred to a Magistrate Judge under 28 U.S.C. § 636(c), the reference can be withdrawn only "for good cause shown on its own motion, or under extraordinary circumstances shown by any party." Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Plaintiff has not presented extraordinary circumstances, nor does the Court find good cause, entitling Plaintiff to withdraw his consent to the jurisdiction of the Magistrate Judge. Plaintiff's motion for reconsideration by a District Judge is denied.
C. Third Amended Complaint
Plaintiff incorrectly argues that the order on his motion for reconsideration rendered the third amended complaint void. The order did not find that the dismissal of the second amended complaint was erroneous due to the decision in Rhodes v Robinson, 621 F.3d 1002 (9th Cir. 2010). The order dismissing the second amended complaint informed Plaintiff that he could not attempt to litigate claims based on incidents that occurred after this lawsuit was initiated because they would not have been exhausted at the time Plaintiff filed this action. Due to the decision in Rhodes, the Court permitted Plaintiff to include new and newly exhausted claims that occurred after November 8, 2008. The September 8, 2010, order remained valid in all other respects. The third amended complaint was not stricken ...