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Ray v. C/O Harlien

United States District Court, E.D. California

September 29, 2014

ROBERT M. RAY, Plaintiff,
C/O HARLIEN, et al., Defendants.


STANLEY A. BOONE, Magistrate Judge.

Plaintiff Robert M. Ray is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ยง 1983.

On August 1, 2014, the Court screened and dismissed Plaintiff's first amended complaint, with leave to amend. (ECF No. 10.)

On August 15, 2014, Plaintiff filed and the Court granted Plaintiff an extension of thirty days to comply with the Court's August 1, 2014, order.

On September 8, 2014, Plaintiff filed "objections" to the Court's August 1, 2014, order.



There is no provision for objections to the order at issue and the Court therefore construes Plaintiff's filing as a motion for reconsideration. Fed.R.Civ.P. 60(b).

Reconsideration motions are committed to the discretion of the trial court. Rodgers v. Watt , 722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking , 825 F.2d 437, 441 (D.C. Cir. 1987). A party seeking reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse a prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield , 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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 injustice and is to be utilized only where extraordinary exist. Harvest v. Castro , 531 F.3d 737, 749 (9th Cir. 2008). The moving party must demonstrate both injury and circumstances beyond his control. Harvest v. Castro , 531 F.3d at 749. Further, Local Rule 230(j) requires, in relevant part, that Plaintiff 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, " and "why the facts or circumstances were not shown at the time of the prior motion."

Plaintiff disagrees with the undersigned's finding on his claims relief. In screening Plaintiff's complaint, the Court carefully considered Plaintiff's allegations, construed in the light most favorable to him, and explained in detail why the first amended complaint did not state a claim for relief under section 1983, and Plaintiff was granted leave to file a further amended complaint. This was not an instance where Plaintiff was not notified of the deficiencies and denied leave to amend. Plaintiff cites to no new facts or to facts which were overlooked by the undersigned. Plaintiff mere contends the Court was wrong and his claims are cognizable. At this stage of the proceedings, if Plaintiff disagrees with the Court's screening order, his remedy is to file a Second Amended Complaint setting forth his claims for relief. Plaintiff was forewarned in the screening order that if he does not file an amended complaint, the action will be dismissed.

Reconsideration is not a vehicle by which to obtain a second bite at the apple; it is reserved for extraordinary circumstances. Westlands Water Dist., 134 F.Supp.2d 1111, 1131; see also In re Pacific Far East Lines, Inc. , 889 F.2d 242, 250 (9th Cir. 1989) (Rule 60(b)(6) may provide relief where parties were confronted with extraordinary circumstances but it does not provide a second chance for parties who made deliberate choices). Plaintiff's disagreement and dissatisfaction with the Court's decision are not grounds for reconsideration.





1. Plaintiff's motion for reconsideration is DENIED; and
2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second amended complaint; and
3. Failure to comply with this order will result in dismissal of the action for failure to state a cognizable claim for relief.


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