United States District Court, E.D. California
AMENDED  ORDER DENYING MOTION FOR
EXTENSION OF TIME, FOR NEW TRIAL, FOR RECONSIDERATION, FOR
POST-TRIAL INTERVIEW OF JURORS, TO PROCEED IN FORMA PAUPERIS,
AND STRIKING NON-PARTY FILING (DOC. NOS. 214, 218, 230, 234,
Bealer (“plaintiff) is a state prisoner proceeding pro
se and in forma pauperis with this civil rights
action filed pursuant to 42 U.S.C. § 1983. The
undersigned presided over a jury trial in this case, which
proceeded on plaintiffs Fourth Amended Complaint in which he
alleged that the defendants had subjected him to the
excessive use of force in violation of his rights under the
Eighth Amendment. (Doc. No. 21.) On August 11, 2016, the jury
returned a unanimous verdict in favor of defendants, finding
that defendants R. Brannum and S. Rios did not use excessive
force against plaintiff on November 1, 2010. (Doc. No. 206.)
At the time of the trial, defendants R. Brannum and S. Rios
were the only remaining defendants in the case, and
plaintiff's excessive use of force claim was the only
remaining claim in the case. (Doc. No. 33.)
entry of judgment in favor of defendants, plaintiff filed a
flurry of post-trial motions. On September 6, 2016, plaintiff
filed a motion for an extension of time to submit a
post-trial motion for a new trial, and a notice of appeal.
(Doc. Nos. 214-15.) Plaintiff filed a motion for a new trial
on September 15, 2016, and amended his motion for a new trial
on December 15, 2016. (Doc. Nos. 218, 235.)
October 31, 2016, plaintiff filed a motion to proceed in
forma pauperis on appeal and for a new trial, and a
motion for reconsideration of the court's October 17,
2016 order denying his motion for preparation of a trial
transcript at government expense. (Doc. Nos. 230-31.)
December 5, 2016, plaintiff filed a motion seeking
authorization for the post-trial interview of jurors. (Doc.
No. 234.) On January 9, 2017, plaintiff filed a motion
requesting that the undersigned appear as a witness and
requesting videotape evidence in support of his motion for a
new trial. (Doc. No. 234, 237.)
Motions for Extension of Time and For a New
noted above, plaintiff has filed a motion for an extension of
time to submit a post-trial motion for a new trial, a motion
for a new trial, and an amended motion for a new trial. (Doc.
Nos. 214, 218, 235.)
for a new trial are governed by Federal Civil Procedure Rule
59, which provides that any such motions “must be filed
no later than 28 days after the entry of judgment.”
Fed.R.Civ.P. 59. Motions to alter or amend a judgment brought
under Rule 59(e) must also be “filed no later than 28
days after the entry of judgment.” Id. Rule 6
of the Federal Civil Procedure Rules prohibits extension of
this twenty eight day period. See Fed. R. Civ. P.
6(b)(2) (“[a] court must not extend the time to act
under Rule . . . 59(b), (d), and (e)”); Adv. Comm.
Notes to 2009 Amendments to Fed.R.Civ.P. 6 (“These time
periods are particularly sensitive because Appellate Rule 4
integrates the time to appeal with a timely motion under
these rules.”); see generally 4 C. Wright
& A. Miller, Federal Practice & Procedure
§ 1168 (1969) (analyzing interpretation of Rule 59
deadlines by federal courts.).
judgment was entered in favor of defendants on August 12,
2016, and the twenty eight day period for filing a motion for
a new trial lapsed on September 9, 2016. (Doc. No. 209.)
Plaintiff did not file his motion for a new trial until
several days after this deadline, on September 15, 2016.
(Doc. Nos. 214, 218.) While plaintiff filed a motion on
September 6, 2016 requesting an extension of time to submit
his motion for a new trial, the court does not have
discretion to extend the deadline for filing such a motion.
See de la Fuente v. Central Elec. Co-op., Inc., 703
F.2d 63, 65 (3d Cir. 1983) (“The [Rule 59 deadline] is
jurisdictional, and ‘cannot be extended in the
discretion of the district court.'”) (citing
Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.
1980)); see also Napier v. United States, No.
1:10-cv-00040 OWW GSA, 2011 WL 2493756, at *1 (E.D. Cal. June
22, 2011) (denying plaintiff's motion for new trial as
untimely because it was filed more than eight days after the
entry of judgment, and stating that the motion would be
untimely “even if construed as a motion to alter or
amend judgment under Rule 59(e)).
plaintiff's motion for a new trial will be denied as
untimely, and plaintiff's motion for an extension of time
to file the motion for a new trial will likewise be
Motion for Reconsideration
also moves for reconsideration of the court's October 17,
2016 order denying his motion for preparation of a trial
transcript at government expense. (Doc. Nos. 231.)
review motions to reconsider a magistrate judge's ruling
under the “clearly erroneous or contrary to law”
standard. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A);
Miller v. Akanno, No. 1:12-CV-01013-LJO-SKO (PC),
2015 WL 566304, at *1 (E.D. Cal. Jan. 16, 2015); see
also Local Rule 303(f). “A finding is clearly
erroneous when although there is evidence to support it, the
reviewing [body] on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Concrete Pipe & Prods. of Cal.,
Inc. v. Constr. Laborers Pension Trust for S. Cal., 508
U.S. 602, 622 (1993) (internal quotation marks omitted)
(alteration in original) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).
“[R]eview under the ‘clearly erroneous'
standard is significantly deferential.” Id. at
‘contrary to law' standard allows independent,
plenary review of purely legal determinations by the
magistrate judge.” Estate of Stephen E. Crawley v.
Robinson, No. 1:13- CV-02042-LJO-SAB, 2015 WL 3849107,
at *2 (E.D. Cal. June 22, 2015). “An order is contrary
to law when it fails to apply or misapplies relevant
statutes, case law, or rules of ...