United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY
PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION (ECF NO.
16) ORDER DENYING REQUEST FOR RECONSIDERATION OF THE
MAGISTRATE JUDGE'S SCREENING ORDER (ECF NO. 19)
is a prisoner proceeding pro se in this civil rights action
brought pursuant to 42 U.S.C. § 1983. The matter was
referred to a United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302.
initiated this action on August 22, 2016. (ECF No. 1.) In a
screening order issued on December 19, 2016, the Magistrate
Judge dismissed Plaintiff's first amended complaint for
failure to state a claim, but granted leave to amend. (ECF
No. 16.) The Magistrate Judge also issued findings and
recommendations to deny Plaintiff's request for a
preliminary junction directing prison officials to assist
Plaintiff with his grievances. (Id.) Plaintiff was
directed to file his objections within fourteen days.
Plaintiff's objections were filed on January 12, 2017.
(ECF No. 19.) Therein, Plaintiff objects not only to the
Magistrate Judge's refusal to enter a preliminary
injunction, but also to the Magistrate Judge's finding
that Plaintiff's complaint failed to state a claim.
Plaintiff's objections regarding the Magistrate
Jude's screening order are more appropriately construed
as a motion for reconsideration under Rule 72(a) of the
Federal Rules of Civil Procedure.
Motion for Reconsideration
Magistrate Judge's screening order is not a final order
dispositive of a claim or defense. Reid v. United
States, No. 1:14-cv-01163-LJO-MJS, 2015 WL 2235127, at
*1 (E.D. Cal. May 12, 2015). Under Rule 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, Lo cal 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 . . . .”
filing is difficult to understand. He essentially argues that
the factual allegations contained within the first amended
complaint are sufficient to state a cause of action under the
Due Process Clause, the Americans with Disabilities Act, and
the Equal Protection Clause. He points to no new or different
facts or circumstances to support his motion, other than to
point out that he “inadvertently” wrote in his
complaint that he sued each Defendant in his individual
capacity, when he in fact means to sue them in their official
first amended complaint was properly dismissed for failure to
link any named Defendant to an act or omission that resulted
in the violation of Plaintiff's rights. The Magistrate
Judge also advised Plaintiff that any claims he wished to
make against Defendants in their official capacities must
allege the existence of a policy or practice that led to the
violation of Plaintiff's rights. To the extent Plaintiff
wishes to clarify his claims, the Magistrate Judge granted
him an opportunity to file an amended complaint. Plaintiff
should heed this directive. Plaintiff's motion for
reconsideration will be denied.
Findings and Recommendation to Deny Preliminary Injunctive
maintains that he has been and continues to be irreparably
harmed by the conduct of the named Defendants, in that he
suffers stress and anxiety, which affects his mental and
physical well-being. Plaintiff argues that at the very least,
he should be granted an opportunity to amend his request for
injunctive relief to set forth more facts in support.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, the Court has conducted a de
novo review of Plaintiff's request. The Court finds the
findings and recommendations to be supported by the record
and by proper analysis. Plaintiff has made no showing that he
is entitled to injunctive relief at this time; indeed, as
Plaintiff has not yet stated a cognizable claim, the Court
lacks jurisdiction to direct the actions of Defendants.
Zepeda v. United States Immigration Service, 753
F.2d 719, 727 (9th Cir. 1985). The Court will deny his
request, albeit without prejudice. If new circumstances arise
in the future that warrant consideration, Plaintiff may renew
his request at that time.
it is HEREBY ORDERED that:
1. The findings and recommendations filed on December 19,
2016 (ECF No. 16) is adopted in full;
2. Plaintiffs motion for a preliminary injunction (ECF No. 9)
is DENIED without prejudice; and
3. Plaintiffs motion for reconsideration of the Magistrate
Judge's screening order ...