December 20, 2013
CHARLES E. MOSES, JR., CDCR #K-65174, Plaintiff,
CYNTHIA WHITE, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION [ECF No. 8]
LARRY ALAN BURNS, District Judge.
I. Procedural History
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. On November 12, 2013, this Court dismissed this action as duplicative pursuant to 28 U.S.C. § 1915A(b)(1) and denied Plaintiff's Motion to Proceed In Forma Pauperis as moot. (ECF No. 4.) Specifically, the Court found the claims in this action to be identical to the claims Plaintiff filed in Moses v. White, et al., S.D. Cal. Civil Case No. 12cv0073 JLS (BGS). ( Id. at 2.) The Court dismissed the action and closed the file.
On November 29, 2013, the Plaintiff filed a Motion for Reconsideration in this matter. (ECF No. 8.)
II. Plaintiff's Motion
A. Motion for Reconsideration
The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration. However, a motion for reconsideration may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b).
B. Plaintiff's claims
In Plaintiff's Motion, he argues that this Court should never have dismissed this action as duplicative because the basis for the dismissal in Moses v. White, et. al., S.D. Cal Civil Case No. 12cv0073 JLS (BGS) was erroneous. ( See Pl.'s Mot. at 1.) Specifically, Plaintiff argues that his previous action was dismissed because the Court found that Defendant White was erroneously entitled to judicial immunity. ( Id. ) However, the Court has reviewed the docket in the matter the Court found to be duplicative and finds that the action was, in fact, dismissed as barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). ( See Moses v. White, et. al., S.D. Cal Civil Case No. 12cv0073 JLS (BGS), ECF No. 5 at 2-3.) Thus, Defendant White was not found to have judicial immunity and moreover, Plaintiff was granted leave to file an Amended Complaint which he failed to do. As the Court stated in the Order challenged by Plaintiff, a prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). This is the third identical action Plaintiff has filed involving the same claims and the same parties. A motion for reconsideration cannot be granted merely because Plaintiff is unhappy with the judgment, frustrated by the Court's application of the facts to binding precedent or because he disagrees with the ultimate decision. See 11 Charles Alan Wright & Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2007) (citing Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Plaintiff has failed to provide any factual or evidentiary support for any basis under Rule 60(b) that would justify vacating the Court's November 12, 2013 Order.
III. Conclusion and Order
Accordingly, Plaintiff's Motion brought pursuant to FED.R.CIV.P. 60 [ECF No. 8] is hereby DENIED.
IT IS SO ORDERED.