United States District Court, S.D. California
ORDER DENYING MOTION FOR RECONSIDERATION [ECF NO.
ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE
ALLEN, Jr., (“Plaintiff”), is currently
incarcerated at Calipatria State Prison (“CAL”)
and is proceeding pro se in this case pursuant to 42 U.S.C.
original Complaint, Plaintiff claimed more than a dozen CAL
and California Department of Corrections and Rehabilitation
officials violated his First, Fourth, Eighth, and Fourteenth
Amendment rights by requiring he submit to random urinalysis
and subjecting him to discipline when he refused. (ECF No. 1
November 3, 2016, the Court granted Plaintiff leave to
proceed in forma pauperis, but dismissed his Complaint sua
sponte and in its entirety for failing to state a claim upon
which § 1983 relief can be granted pursuant to 28 U.S.C.
§ 1915(e)(2) and § 1915A(b). (ECF No. 3.) In its
19-page Order, the Court thoroughly reviewed each and every
potential constitutional basis for Plaintiff's claims,
provided him notice of his pleading deficiencies, and granted
him 45 days leave in which to amend them. (Id.)
has not submitted an Amended Complaint. Instead, he has filed
a “Motion for leave to File a Motion for
Reconsideration of Order Dismissing Complaint sua sponte
pursuant to Rule 46.” (ECF No. 5.)
Plaintiff is proceeding without counsel, and he claims the
“Order to Dismiss is clearly erroneous and contrary to
law, ” (ECF No. 5 at 3), the Court liberally construes
his Motion as one seeking reconsideration of the Court's
November 3, 2016 Order pursuant to S.D. Cal. CivLR 7.1.i.1.
order that resolves fewer than all of the claims among the
parties “is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties.” Fed.R.Civ.P.
54(b); S.D. Cal. CivLR 7.1.i.1 (authorizing applications for
reconsideration of “any motion … for any order
or other relief [that] has been made to any judge and has
been refused in whole or in part…”). Here, the
Court did not enter a final order of dismissal when it
screened and dismissed Plaintiff's Complaint on November
3, 2016; instead, it afforded him leave to amend. See WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1136-37
(9th Cir. 1997) (“[W]hen a district court expressly
grants leave to amend, it is plain that the order is not
final.”); see also Martinez v. Wells Fargo
Bank, No. 12-CV-802-CAB (BGS), 2014 WL 12035852, at *1
(S.D. Cal. Mar. 21, 2014). The Court retains its inherent
power, rooted in the common law, to reconsider or modify an
interlocutory order for cause. See City of Los Angeles,
Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 887
(9th Cir. 2001); see also United States v. Martin,
226 F.3d 1042, 1048-49 (9th Cir. 2000) (where reconsideration
of a non-final order is sought, the court has “inherent
jurisdiction to modify, alter or revoke it.”).
reconsideration is an “extraordinary remedy, to be used
sparingly in the interests of finality and conservation of
judicial resources.” Kana Enters., Inc. v. Estate
of Bishop, 229 F.3d 877, 890 (9th Cir. 2000);
Century Indem. Co. v. The Marine Grp., LLC, No.
3:08-CV-1375-AC, 2016 WL 96147, at *2 (D. Or. Jan. 7, 2016).
Generally, reconsideration is only appropriate where there
has been an intervening change in controlling law, new
evidence has become available, or it is necessary to correct
clear error or prevent manifest injustice. See Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993).
absence of new evidence or a change in the law, a party may
not use a motion for reconsideration to raise arguments or
present new evidence for the first time when it could
reasonably have been raised earlier in the litigation.
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003); see also Orange St. Partners v. Arnold, 179
F.3d 656, 665 (9th Cir. 1999); United States v.
Munguia, No. 1:08-CR-000228-LJO-1, 2016 WL 1452011, at
*1 (E.D. Cal. Apr. 13, 2016). Motions to reconsider are also
“not vehicles permitting the unsuccessful party to
‘rehash' arguments previously presented.”
United States v. Navarro, 972 F.Supp. 1296, 1299
(E.D. Cal. 1997), rev'd on other grounds, 160
F.3d 1254 (9th Cir. 1998). Ultimately, a party seeking
reconsideration must show “more than a disagreement
with the Court's decision, and recapitulation of the
cases and arguments considered by the court before rendering
its original decision fails to carry the moving party's
burden.” United States v. Westlands Water
Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001)
(citations and internal quotes omitted); Wood v.
Carey, No. 2:04-CV-1225 MCE AC, 2015 WL 4617773, at *3
(E.D. Cal. July 31, 2015). “While a motion for
reconsideration allows a party to bring a material oversight
to the court's attention, it is not appropriate for a
party to request reconsideration merely to force the court to
think about an issue again in the hope that it will come out
the other way the second time.” Brown v. S Nev.
Adult Mental Health Servs., 2014 WL 2807688, at *2 (D.
Nev. 2014) (internal quotation omitted); see also Palmer
v. Champion Mortgage, 465 F.3d 24, 30 (1st Cir. 2006).
what Plaintiff essentially seeks here-he disagrees with the
Court's November 3, 2016 conclusion that his Complaint
failed to contain facts sufficient to state any plausible
constitutional claim upon which relief can be granted, and he
claims the Court erred by failing to construe his pleading
liberally and afford him the benefit of the doubt. (ECF No. 5
at 2-3). But the Court noted and applied the appropriate
standards for determining whether Plaintiff failed to state a
claim under both § 1915(e)(2) and § 1915A in its
Order. (See ECF No. 3 at 4, citing Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Wilhelm
v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)). And
while the Court agrees it “ha[s] an obligation where
the petitioner is pro se, particularly in civil rights cases,
to construe the pleadings liberally and to afford the
petitioner the benefit of any doubt, ” Hebbe v.
Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010), it
“may not supply essential elements of the claim that
were not initially pled.” Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011)
because Plaintiff points to no intervening change in the law,
material oversight, or any error whatsoever, his ...