Plaintiff has filed a request for reconsideration of the district court's order, filed on September 21, 2012. By that order, the court denied defendants' motion to dismiss as to three of the defendants but granted the motion as to defendant Zamudio.*fn1 Plaintiff contends that the court erred in dismissing defendant Zamudio for plaintiff's failure to exhaust administrative remedies.
I. STANDARD FOR A MOTION FOR RECONSIDERATION
Federal Rule of Civil Procedure 60(b) provides: "On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding" in the case of mistake or excusable neglect, newly discovered evidence, fraud, a judgment that is void, satisfaction of the judgment, or for "(6) any other reason that justifies relief." Fed.R.Civ.P. 60(b). This catch-all provision of Rule 60(b)(6) "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Klapprott v. United States, 335 U.S. 601, 615, 69 S.Ct. 384, 93 L.Ed. 266 (1949). Rule 60(b) "attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done." Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007) (citing 11 Wright & Miller Federal Practice & Procedure §2851 (2d ed. 1995)). Nonetheless, in order to seek relief under Rule 60(b)(6), the movant must demonstrate "extraordinary circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (quoting Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950)).
In addition, Local Rule 230(j) applies to motions for reconsideration filed in the Eastern District. That rule requires the movant to brief the court on, inter alia, "what new or different facts or circumstances . . . 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." L.R. 230(j)(3)-(4).
The May 24, 2011 findings and recommendations thoroughly addressed the question of whether plaintiff had administratively exhausted his claim against defendant Zamudio. See Doc. No. 44. Upon de novo review and consideration of plaintiff's objections (Doc. No. 46), this court rejected the magistrate judge's finding that plaintiff's ability to file an unrelated administrative appeal while housed in administrative segregation undercut his assertion of an inability to file the third level appeal as to defendant Zamudio. See Doc. No. 48. Nevertheless, this court agreed with the magistrate judge's determination that plaintiff had failed to exhaust his administrative remedies as to defendant Zamudio.
In his reconsideration motion (Doc. No. 52), plaintiff restates arguments that he previously raised in his opposition and/or his objections. No new or different material facts are presented. Neither plaintiff's representation that he received delayed notice of the second level response, nor the changed regulatory language cited in the motion for reconsideration, casts doubt on the conclusion that plaintiff had an opportunity to timely file a third level appeal and failed to do so. Even if the third level appeal was not due until December 13, 2005, as plaintiff argues, it remains the case that his appeal was written by November 23, 2005, he was not placed in administrative segregation until December 4, 2005, and the appeal was not filed until May of 2006.
Therefore, IT IS HEREBY ORDERED that:
1. Upon reconsideration (Doc. No. 52), this court's order of September 21, 2012 (Doc. No. 48) is affirmed; and
2. Plaintiff's motion for reconsideration of the magistrate judge's denial of plaintiff's request for extension of time, filed on October 24, ...