United States District Court, E.D. California
ORDER DENYING MOTION FOR RECONSIDERATION (ECF NO.
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
a civil action filed by Lillian Smith
(“Plaintiff”), a state prisoner proceeding
pro se. This action was initiated by civil complaint
filed by Plaintiff in the Madera County Superior Court on
November 18, 2016 (Case #MCV073193). On May 17, 2017,
defendants C. Burgdorff, J. Harry, E. Olesky, and B. Wilkins
(“Defendants”) removed the case to federal court
by filing a Notice of Removal of Action pursuant to 28 U.S.C.
§ 1441(a). (ECF No. 1.) On April 16, 2018, the court
screened the Complaint under 28 U.S.C. § 1915A and
issued an order dismissing the Complaint for failure to state
a claim upon which relief may be granted, with leave to
amend. (ECF No. 10.) In the order, Plaintiff was directed to
file a First Amended Complaint within thirty days, and she
was forewarned that her failure to comply with the
court's order “shall result in a recommendation
that this case be dismissed for failure to state a
claim.” (Id. at 10.)
3, 2018, Plaintiff filed a motion for reconsideration of the
court's screening order. (ECF No. 11.)
MOTION FOR RECONSIDERATION
60(b)(6) allows the Court to relieve a party from an order
for any reason that justifies relief. Rule 60(b)(6) “is
to be used sparingly as an equitable remedy to prevent
manifest injustice and is to be utilized only where
extraordinary circumstances . . .” exist. Harvest
v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal
quotations marks and citation omitted). The moving party
“must demonstrate both injury and circumstances beyond
his control . . . .” Id. (internal quotation
marks and citation omitted). In seeking reconsideration of an
order, Local Rule 230(k) requires Plaintiff to show
“what 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 for reconsideration should not be granted, absent
highly unusual circumstances, unless the district 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) (internal quotations marks and citations omitted, and
“[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). To succeed, a party must set forth
facts or law of a strongly convincing nature to induce the
court to reverse its prior decision. See Kern-Tulare
Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665
(E.D. Cal. 1986), affirmed in part and reversed in part on
other grounds, 828 F.2d 514 (9th Cir. 1987).
requests the court to reconsider its decision in the
screening order to dismiss her claims against defendants C.
Burgdorff, J. Harry, E. Olesky, and B. Wilkins. Plaintiff
disagrees with the court's assessment of these claims.
Plaintiff reiterates her allegations against defendants and
requests the court to reverse the decision in the screening
has not set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.
Therefore, the motion for consideration shall be denied.
stage of the proceedings, if Plaintiff disagrees with the
court's screening order her remedy is to file a First
Amended Complaint clearly and succinctly stating the
allegations and claims upon which she wishes to proceed.
Thereafter the court will screen the First Amended Complaint
based on her allegations stated therein. Plaintiff shall be
granted additional time to prepare and file a First Amended
on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for reconsideration, filed on May