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Franklin v. United States

United States District Court, E.D. California

April 23, 2014



GARY S. AUSTIN, Magistrate Judge.


Emery L. Franklin III ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with this civil action. On January 31, 2011, Plaintiff filed the Complaint commencing this action. (Doc. 1.) On February 9, 2011, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and no other parties have appeared in this action. (Doc. 5.)

The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on June 13, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 6.) On June 26, 2013, Plaintiff filed the First Amended Complaint. (Doc. 7.) The court screened the First Amended Complaint and entered an order on April 3, 2014, dismissing this case in its entirety based on Plaintiff's failure to state a claim under Bivens v. Six Unknown Agents , 403 U.S. 388 (1971), and judgment was entered. (Docs. 12, 13.)

On April 10, 2014, Plaintiff filed a motion for reconsideration of the court's order dismissing this case. (Doc. 14.)


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). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield , 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

A. Plaintiff's Motion

Plaintiff requests reconsideration of the court's order dismissing this case under Bivens, arguing that he did not bring this case as a Bivens action, and instead intended to bring an action under the Federal Tort Claims Act (FTCA). Plaintiff argues that he originally filed this case on January 31, 2011 as a case under the FTCA, and his amended complaint brings claims under the FTCA.

B. Bivens Claim vs. FTCA Claim

The basis of a Bivens action, filed pursuant to Bivens v. Six Unknown Agents , 403 U.S. 388 (1971), is some illegal or inappropriate conduct on the part of a federal official or agent that violates a clearly established constitutional right. Baiser v. Department of Justice, Office of U.S. Trustee , 327 F.3d 903, (9th Cir. 2003). A Bivens action is the federal analog to suits brought against state officials under 42 U.S.C. § 1983. Hartman v. Moore , 547 U.S. 250, 126 S.Ct. 1695 (2006). A Bivens claim is only available against officers in their individual capacities, Morgan v. U.S. , 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre , 81 F.3d 854, 857 (9th Cir. 1996), and Plaintiff must allege facts linking each named defendant to the violation of his rights, Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S.Ct. 1937, 1949 (2009); Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing, 588 F.3d at 1235; Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002). "A plaintiff must plead more than a merely negligent act by a federal official in order to state a colorable claim under Bivens." O'Neal v. Eu , 866 F.2d 314, 314 (9th Cir.1988).

On the other hand, an action pursuant to the FTCA is a civil action against the United States, "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee" of the federal government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b). The FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, waives the sovereign immunity of the United States for certain torts committed by federal employees. FDIC v. Meyer , 114 S.Ct. 996, 1000 (1994). As a jurisdictional prerequisite, the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. McNeil v. United States , 508 U.S. 106, 113 (1993). Pursuant to 28 U.S.C. § 2675(a), an action shall not be instituted upon a claim against the United States for money damages for an employee's negligence unless the claimant has first presented the claim to the appropriate federal agency and his claim ...

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