United States District Court, E.D. California
ORDER DENYING MOTION FOR RECONSIDERATION (DOC. 55.)
GARY S. AUSTIN, Magistrate Judge.
Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the Second Amended Complaint against defendants Dr. Cohen, Sgt. J. Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on Plaintiff's due process claim and against defendants Dr. Cohen, Sgt. J. Lopez, C/O Z. Dean, and C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.)
On May 9, 2014, Plaintiff filed a motion to compel. (Doc. 40.) On August 12, 2014, the court issued an order denying the motion. (Doc. 50.) On August 22, 2014, Plaintiff filed objections to the order, which the court treats as a motion for reconsideration. (Doc. 55.)
II. MOTION FOR RECONSIDERATION
Rule 60(b) allows the Court to relieve a party from an order for "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies relief." Fed.R.Civ.P. 60(b). 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).
Plaintiff takes issue with the statement in the court's order that he failed to file a timely reply to Defendants' opposition to the motion to compel. (Order, Doc. 50 at 2:5-7.) Plaintiff asserts that on July 31, 2014, he prepared a reply titled "Plaintiff's Opposition to Defendant's Motion Opposition to Plaintiff's Motion to Compel" and delivered it to prison officials for mailing. Plaintiff requests the court's consideration of this reply.
The motion to compel at issue was filed by Plaintiff on May 9, 2014. (Doc. 40.) Defendants filed their opposition on May 23, 2014. (Doc. 42.) Under Local Rule 230( l ), Plaintiff had seven (7) days from May 23, 2014, the date of filing of the Defendants' opposition, in which to file a reply to the opposition. Plaintiff did not file any reply until August 7, 2014, when he filed a document dated July 31, 2014, titled "Plaintiff's Opposition to Defendant's Motion Opposition to Plaintiff's Motion to Compel." (Doc. 49.) Even under the mailbox rule, this reply was filed untimely under Rule 230( l ).
Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's motion for reconsideration, filed ...