The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 13.)
ORDER FOR PLAINTIFF TO EITHER:
(1) FILE A SECOND AMENDED
(2) NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED ONLY ON THE CLAIM FOUND COGNIZABLE BY THE COURT
THIRTY-DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED
Kevin Fields ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by civil complaint at the Kings County Superior Court on August 11, 2010 (Case #10-C0309). On September 23, 2010, defendant Rosenthal ("Defendant") removed the case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(b). (Doc. 1.)
On October 7, 2010, Plaintiff filed the First Amended Complaint. (Doc. 5.) The Court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and entered an order on May 21, 2012, giving Plaintiff two options, (1) to file a Second Amended Complaint, or (2) to notify the Court of his willingness to proceed on the claims found cognizable by the Court. (Doc. 9.) On May 29, 2012, Plaintiff filed written notice that he was willing to proceed on the claims found cognizable by the Court. (Doc. 11.) On June 20, 2012, Defendant filed a motion to dismiss the complaint for failure to state a claim. (Doc. 12.)
On July 5, 2012, Plaintiff filed a motion for the Court to re-screen claim #1 of the First Amended Complaint. (Doc. 13.) On July 25, 2012, Defendant filed an opposition to the motion. (Doc. 15.) Plaintiff's motion for reconsideration of the screening order is now before the Court.
II. MOTION FOR RECONSIDERATION
Rule 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). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to 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."
"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," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted, and "[a] party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation . . . " of that which was already considered by the Court in rendering its decision," U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
Plaintiff requests the Court to re-screen claim #1 in the First Amended Complaint, arguing that the Court erred in its screening order and misconstrued claim #1 as an access to courts claim instead of a retaliation claim. Plaintiff then recites allegations against Defendant, stemming from events occurring on January 5, 2010.
Defendant opposes Plaintiff's motion, "whether construed as an informal objection under Rule 46 or as a motion for reconsideration under Rule 60(b)," arguing that Plaintiff waived his objection when he consented to proceed with the litigation on the claims found cognizable by the Court. (Opp'n, Doc. 15 at 1:21-24.) In the event that the Court grants Plaintiff's motion, Defendant requests ...