United States District Court, E.D. California
VINCENT J. BIAGAS, SR., Plaintiff,
T. VIRGA, et al., Defendants.
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, brings this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c) and no other party has been served or
appeared in the action. This action was dismissed, and
judgment entered, on March 24, 2016. Pending before the court
are plaintiff's motion for reconsideration (Doc. 40), and
two motions to amend the complaint (Docs. 41, 42).
court may grant reconsideration of a final judgment under
Federal Rules of Civil Procedure 59(e) and 60. Generally, a
motion for reconsideration of a final judgment is
appropriately brought under Federal Rule of Civil Procedure
59(e). See Backlund v. Barnhart, 778 F.2d 1386, 1388
(9th Cir. 1985) (discussing reconsideration of summary
judgment); see also Schroeder v. McDonald, 55 F.3d
454, 458-59 (9th Cir. 1995). The motion must be filed no
later than twenty-eight (28) days after entry of the
judgment. See Fed.R.Civ.P. 59(e). Under
Rule 59(e), three grounds may justify reconsideration: (1) an
intervening change in controlling law; (2) the availability
of new evidence; or (3) the need to correct clear error or
prevent manifest injustice. See Kern-Tulare Water Dist.
v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal.
1986), rev'd in part on other grounds, 828 F.2d
514 (9th Cir. 1987), cert. denied, 486 U.S. 1015
(1988); see also 389 Orange Street Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999); accord
School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993).
Rule 60(a), the court may grant reconsideration of final
judgments and any order based on clerical mistakes. Relief
under this rule can be granted on the court's own motion
and at any time. See Fed.R.Civ.P. 60(a). However,
once an appeal has been filed and docketed, leave of
the appellate court is required to correct clerical mistakes
while the appeal is pending. See id.
Rule 60(b), the court may grant reconsideration of a final
judgment and any order based on, among other things: (1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which, with reasonable diligence,
could not have been discovered within ten days of entry of
judgment; and (3) fraud, misrepresentation, or misconduct of
an opposing party. A motion for reconsideration on any of
these grounds must be brought within a reasonable time and no
later than one year of entry of judgment or the order being
challenged. See Fed.R.Civ.P. 60(c)(1).
plaintiff provides no grounds for which the court to grant
his motion for reconsideration. Plaintiff only argues he will
be able to support his claims once discovery is completed,
and that dismissal of his case was unfair. He make some
argument as to the mailbox rule and being unfairly subject to
the three strikes provision. However, plaintiffs was not
denied the mailbox rule as no filing was deemed untimely, and
was not barred from filing this case pursuant to the three
strikes provision. As such, the undersigned finds no merit to
his arguments. Plaintiff does not argue there was an
intervening change of the law, new evidence, or clear error
under Rule 59(e). Similarly he fails to contend any mistake,
newly discovered evidence, or misconduct under Rule 60(b).
Nor does he point to any clerical mistake to be corrected
under Rule 60(a). To the extent he claims dismissal of this
action was clear error or resulted in manifest injustice,
such an argument is not clear and is not persuasive.
Plaintiff points to no error; he simply disagrees with this
court's decision. Plaintiff was provided the opportunity
to correct the defects in his complaint, and was provided
guidance on what was required to do so. He was unable or
unwilling to follow the court's instructions, and his
amended complaint contained many of the same defects as his
original complaint. Plaintiff was given an additional
opportunity to show cause why his case should not be
dismissed, and was again unable to present to the court an
court finds no grounds on which to grant the motion for
reconsideration. As this case was dismissed and judgment
entered, his motions to amend his complaint are moot.
IT IS HEREBY ORDERED that:
1. Plaintiffs motion for reconsideration (Doc. 40) is denied;
2. Plaintiffs motions to amend (Docs. 41, 42) are denied as
 Pursuant to Houston v. Lack,
487 U.S. 266 (1988), for pro se prisoner litigants seeking
reconsideration, the court calculates the 28-day period from
the date the motion was delivered to prison authorities for
mailing to the court. Otherwise, the 28-day period is
calculated based on the date the motion for reconsideration
is actually filed.
 If reconsideration is sought based on
new evidence which could not have been discovered through due
diligence in time to move for reconsideration under Rule
59(e), relief may be available under Federal Rule of Civil
Procedure 60(b)(2). A motion under Rule 60(b)(2) may ...