United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S OBJECTIONS ECF No.
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
Willie Bolds is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Pending before the Court is Plaintiff's objections, which
the Court construes as a motion for reconsideration and a
request for relief under Rule 60 of the March 18, 2016, order
dismissing the complaint for failure to state a claim upon
which relief could be granted.
action proceeds on the February 1, 2016, third amended
complaint. On March 18, 2016, an order was entered,
dismissing this action for failure to state a claim upon
which relief could be granted. (ECF No. 30.) On April 4,
2016, Plaintiff filed a Notice of Appeal of the March 18,
2016, order. On the same date, Plaintiff filed objections to
the order dismissing this action for failure to state a
claim. On April 13, 2016, an order was entered by the U.S.
Court of Appeals for the Ninth Circuit, holding proceedings
in that court in abeyance pending a ruling by this Court
whether Plaintiff's April 4, 2016, filing is a motion
listed in Federal Rule of Appellate Procedure 4(a)(4) and if
so, this Court's resolution of the motion. (ECF No. 34.)
Federal Rule of Appellate Procedure 4(a)(4)(A)(vi) provides
for relief under Federal Rule of Civil Procedure 60 if the
motion is filed within 28 days after judgment is entered.
Court construes Plaintiff's objections as alternatively,
a motion for reconsideration under Rule 230 of the Local
Rules of the Eastern District of California and as motion for
relief from judgment pursuant to Federal Rule of Civil
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
quotation marks omitted). The moving party must demonstrate
both injury and circumstances beyond his control . . .
." Id. (internal quotation marks and citations
seeking reconsideration of an order, Local Rule 230(j)
requires Plaintiff to show "what new or different facts
or circumstances are claimed to exist or were not shown upon
such prior motion, or what other grounds exist for the
motion." Local Rule 230(j) allows the Court to grant
relief based upon new or different facts or circumstances
that 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 upon a showing of why the facts or
circumstances were not shown at the time of the prior 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
controlling law." Marlyn Nutraceuticals, Inc., v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotation 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 111, 1131 (E.D.
Cal. 2001). To succeed, a party must set forth facts of law
of such 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. 646, 665 (E.D. Cal.
1986), affirmed in part and reversed in part on other
grounds, 828 F.2d 514 (9th Cir. 1987).
Screening of the Allegations in Plaintiff's
original complaint was filed in this action on October 29,
2012. Plaintiff alleged that Defendants improperly
confiscated and disposed of his television. Plaintiff also
set forth claims under the First Amendment, Fourth Amendment,
and due process (related to the inmate grievance process). On
March 21, 2013, an order was entered, dismissing the
complaint and granting Plaintiff leave to file an amended
complaint. (ECF No 8.) On April 24, 2013, Plaintiff filed a
first amended complaint. (ECF No. 9.) Plaintiff set forth
claims of free exercise of his religious beliefs under the
First Amendment, unreasonable search in violation of the
Fourth Amendment, due process (related to the grievance
process), and unauthorized deprivation of property claims. On
January 10, 2014, an order was entered, finding that the
first amended complaint failed to state any claims for
relief. This action was dismissed for failure to state a
claim upon which relief could be granted. (ECF No. 11.)
Plaintiff filed a Notice of Appeal, and on March 20, 2015,
this action was affirmed in part, vacated in part, and
remanded. On July 7, 2015, the formal mandate from the Ninth
Circuit was entered in this case. (ECF No. 22.) The Ninth
Circuit affirmed the dismissal of Plaintiff's free
exercise, unreasonable search, due process (related to the
grievance process), and unauthorized deprivation of property
claims. The Ninth Circuit ruled that Plaintiff's due
process claim alleging an authorized deprivation of property
was properly dismissed. However, dismissal without leave to
amend was improper because it was not clear that Plaintiff
could not cure the defect through amendment. The Court
granted Plaintiff leave to amend, and on July 16, 2015,
Plaintiff filed a second amended complaint. (ECF No. 23.) On
January 8, 2016, an order was entered, dismissing the second
amended complaint and granting Plaintiff leave to file a
third amended complaint. (ECF No. 26.) On February 2, 2016,
Plaintiff filed a third amended complaint. (ECF No. 27.)
third amended complaint, Plaintiff alleged that on February
10, 2012, during a mass cell search, his television was
disposed of by prison staff. Plaintiff alleged that staff
failed to cite any legitimate penological justification for
the authorized deprivation. Plaintiff alleged that his
television was disposed of pursuant to Title 15, Section 3190
of the California Code of Regulations, which defines property
that is allowable. Plaintiff alleged that he did not receive
written notice, which was mandated by Title 15, Section
3287(a)(4). The Court noted that Plaintiff attached to his
third amended complaint a copy of a cell search/property
receipt dated February 10, 2012, indicating that
Plaintiff's television was broken, and that it was
Court noted that the Due Process Clause is violated only when
the agency "prescribes and enforces forfeiture of
property without underlying statutory authority and competent
procedural protections." Nevada Dept. of Corrections
v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing
Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir.
2003) (internal quotations omitted), cert. denied, 538 U.S.
976 (2012). The third amended complaint was dismissed because
although Plaintiff alleged that he should have been allowed
to have his television repaired, the allegations of the third
amended complaint indicated that correctional officials took
Plaintiff's television pursuant to statutory authority,
and provided Plaintiff with written notification of the
reason for taking his property. Pursuant to Greene,
that was all the process that was due. Plaintiff therefore
failed to state a claim for relief.