United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR
RECONSIDERATION (ECF NO. 98) ORDER GRANTING PLAINTIFF'S
MOTION TO COMPEL DISCOVERY (ECF NO. 90) TWENTY-ONE DAY
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
is prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. The action proceeds on an Eighth
Amendment failure to protect claim against Defendants Walker,
Davis, Prokop, Spralding, and Fellows.
February 22, 2016, Plaintiff filed a motion for
reconsideration of the order denying his motion to compel.
(ECF No. 98.) Defendants filed an opposition. (ECF No. 101.)
Plaintiff filed no reply and the time for doing so has
passed. The matter is deemed submitted. Local Rule
in this matter initially was set to close on July 4, 2015.
(ECF No. 48.) On June 4, 2015, Plaintiff sought a ninety day
extension of the discovery deadline. (ECF No. 61.) On June 9,
2015, the Court granted the motion in part, affording
Plaintiff until July 24, 2015 to complete discovery. (ECF No.
64.) Pursuant to the Court's original scheduling order,
all responses to written discovery requests were due
forty-five days after the request was first served. (ECF No.
23, 2015, Plaintiff served his "First Set of
Interrogatories for Defendant Walker" on Defendants.
(ECF No. 98 Ex. C). On August 5, 2015, Defendants served a
response on Plaintiff, objecting to this set of
interrogatories as untimely since Defendants' responses
to the interrogatories were due after the discovery deadline
passed. Id. Defendants did not provide any
substantive responses. Id. At some point between
June 9, 2015 and July 24, 2015, Plaintiff served Defendants a
"Motion for Production of Documents" as well as one
set of interrogatories each to Defendants Fellows, Davis,
Spralding, and Prokop; two sets of interrogatories to
Defendant Walker, and one set of admission to Defendant
Walker. Id. On August 14, 2015, Defendants again
objected to Plaintiff's requests on the grounds they were
untimely served and would require Defendant to respond beyond
the discovery deadline. Id. Defendants did not
provide a substantive response.
August 26, 2015, Plaintiff filed a motion for a thirty day
extension of time to file a motion to compel. (ECF No. 77.)
In ruling on the motion, the Court noted that its prior forty
five day extension did not afford Plaintiff sufficient
opportunity to propound discovery, receive a response, and
file any associated motions to compel. (ECF No. 86.)
Therefore, the Court granted the motion for extension of time
and afforded Plaintiff an additional thirty days to file a
motion to compel. Plaintiff was advised that no further
extensions of time would be granted, and that any motion to
compel must indicate "(1) which discovery requests are
the subject of his motion to compel, (2) which of the
defendant's responses are disputed, (3) why he believes
the defendant's responses are deficient, (4) why the
defendant's objections are not justified, and (5) why the
information he seeks through discovery is relevant to the
prosecution of this action." On November 23, 2015,
Plaintiff filed a motion to compel discovery. (ECF No. 90.)
On January 28, 2016, the Court denied Plaintiff's motion
to compel on the grounds that Plaintiff did not include
Defendants' responses to his requests or specify which
responses were deficient. (ECF No. 96.)
instant motion followed. Plaintiff seeks reconsideration of
this Court's order denying his motion to compel, pursuant
to "Rule 72-303(c))." (ECF No. 98.) The Court
construes Plaintiff's motion as a motion for
reconsideration pursuant to Federal Rule of Civil Procedure
72(a) and Local Rule 303(c).
MOTION FOR RECONSIDERATION
Federal Rule of Civil Procedure 72(a), a party may object to
any nondispositive orders entered by a magistrate judge. Rule
72(a) then requires the district judge to "consider
timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law."
Likewise, Local Rule 303(c) states: "A party seeking
reconsideration of the Magistrate judge's ruling shall
file a request for reconsideration by a Judge and serve the
Magistrate judge and all parties. Such request shall
specifically designate the ruling, or part thereof, objected
to and the basis for that objection.
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the . . . 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). "A motion for reconsideration may not be used to
raise arguments or present evidence for the first time when
they could reasonably have been raised in earlier
litigation." Id. Furthermore, "‘[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) (quoting Bermingham v. Sony Corp.
of Am., Inc., 820 F.Supp. 834, 856 (D. N.J. 1992)).
Similarly, Local Rule 230(j) requires that a party seeking
reconsideration show that "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 . . . ."
seeks reconsideration of the magistrate judge's denial of
his motion to compel discovery. The magistrate judge denied
Plaintiff's motion because it did "not include
any of the Defendants' responses to his
discovery requests, let alone those that he deems
deficient." (ECF No. 96.) The magistrate judge also
found Plaintiff "fail[ed] to argue why he ...