United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S NOTICE OF APPEAL TO
DISTRICT JUDGE, CONSTRUED AS A MOTION FOR RECONSIDERATION
(ECF No. 24)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Ruben Tony Cervantes is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
November 7, 2018, the assigned Magistrate Judge issued
findings and recommendations recommending to dismiss this
action, with prejudice, for failure to state a claim upon
which relief can be granted and for failure to comply with
Federal Rule of Civil Procedure 8. (ECF No. 15.) On December
5, 2018 and on January 4, 2019, the Magistrate Judge granted
Plaintiff's two motions for an extension of time to file
objections to the findings and recommendations. (ECF Nos. 17,
19.) On February 20, 2019, after Plaintiff failed to file
objections to the findings and recommendations or a third
request for an extension of time, the undersigned issued an
order adopting the November 7, 2018 findings and
recommendations in full and dismissing the instant action,
with prejudice, for failure to comply with Rule 8 and failed
to state a cognizable claim upon which relief may be granted.
(ECF No. 20.)
September 12, 2019, Plaintiff filed a notice of appeal to
District Judge, which the Court interprets as a motion for
reconsideration of the Court's February 20, 2019 order
adopting the November 7, 2018 findings and recommendations
and dismissing this action.
Motion for Reconsideration
Rule of Civil Procedure 60(b)(6) permits 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 quotation marks and citation omitted). “A
party moving for relief under Rule 60(b)(6) must demonstrate
both injury and circumstances beyond [their]
control[.]” Id. (internal quotation marks and
citation omitted). Additionally, Local Rule 230(j) requires
that, when a party makes a motion for reconsideration, the
party must show “what new or different facts or
circumstances are claimed to exist or were not shown upon
such prior motion, or what other grounds exist for the
motion” and “why the facts and circumstances were
not shown at the time of the prior motion.”
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 quotation marks and citation omitted).
Therefore, “[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
[C]ourt 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) (internal quotation marks and citation omitted).
Plaintiff contends that the Magistrate Judge incorrectly
determined that Plaintiff failed to state any claim upon
which relief may be granted. Plaintiff states that he
“did state a claim which was money and damages, pain
and suffering, mental, physically, under cruel and unusual
punishment.” (ECF No. 24, at 1-2.) However,
Plaintiff's motion fails to present “new or
different facts or circumstances … which did not exist
or were not shown upon such prior motion, ” as required
by Local Rule 230(j). The Court's order adopting the
Magistrate Judge's findings and recommendations was
issued following a de novo review of the entire
case, and Plaintiff has failed to set forth any additional
grounds that the Court did not consider that would entitle
him to relief from the Court's judgment. Therefore,
Plaintiff's motion for reconsideration is denied.
on the foregoing, Plaintiff's motion for reconsideration,
(ECF No. 24), is ...