United States District Court, E.D. California
ORDER DENYING MOTION FOR RECONSIDERATION (Doc. 28.) ORDER FINDING PLAINTIFF'S APPEAL TO BE FRIVOLOUS AND DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL (Docs. 26, 31.)
ORDER DIRECTING CLERK TO SERVE A COPY OF THIS ORDER ON THE NINTH CIRCUIT COURT
ANTHONY W. ISHII, Senior District Judge.
I. RELEVANT PROCEDURAL HISTORY
Gregory Ell Shehee ("Plaintiff") is a Fresno County Jail inmate, proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on April 23, 2014. (Doc. 1.)
On February 19, 2015, the Magistrate Judge issued Findings and Recommendation (F&R), recommending that this case be dismissed with prejudice for failure to state a claim upon which relief may be granted under § 1983. (Doc. 20.)
On April 3, 2015, the undersigned District Judge adopted the F&R, thereby dismissing and closing the case. (Doc. 24.)
On April 10, 2015, Plaintiff filed a motion for reconsideration of the Magistrate Judge's F&R. (Doc. 28.) Also on April 10, 2015, Plaintiff filed an appeal of the district court's dismissal of the case to the Ninth Circuit Court of Appeals, and a motion for leave to proceed in forma pauperis on appeal. (Docs. 26, 27.)
On April 15, 2015, the Ninth Circuit referred the case to the district court for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith. (Doc. 31.)
Plaintiff's motion for reconsideration of the F&R, and motion for leave to proceed in forma pauperis on appeal, are now before the court.
II. MOTION FOR RECONSIDERATION
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).
Here, Plaintiff asserts that he filed objections to the F&R on February 26, 2015. Plaintiff now seeks reconsideration of the F&R, arguing that "the court is abusing it[s] power knowing the state employee's ( sic ) A. King et al, denying my legal document's ( sic ) and the court has give ( sic ) notice in Fresno County Jail." (Doc. 28 at 1:23-26.) The Court construes Plaintiff's motion as a motion for reconsideration of the April 3, 2015 order that adopted the F&R.
Plaintiff's claim that he filed objections to the findings and recommendations on February 26, 2015 is not supported by the record. The only document filed by Plaintiff during the objections time period is a document filed on March 5, 2015 titled, "There Are 9 More Case's Also Has Been Denied To My Right's To The Court's, " in which Plaintiff addresses his conditions of confinement in the Fresno County Jail. (Doc. 22.) In any event, Plaintiff does not describe, reiterate or provide an additional copy the objections. Plaintiff does not explain how the F&R was substantively erroneous or why this case should not have been dismissed. That is, Plaintiff has not set forth facts or law of in ...