United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner who was proceeding pro se and in forma
pauperis with a civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff claimed defendants failed to provide
him with adequate mental health care treatment in violation
of the Eighth Amendment. This action was dismissed on June
12, 2019 for failure to prosecute and failure to comply with
court orders. (ECF Nos. 16, 17.) Presently before the court
is plaintiff's motion to alter the judgement. (ECF No.
extent that petitioner's filing constitutes a motion for
reconsideration, a motion for reconsideration is treated as a
motion to alter or amend the judgement under Federal Rule of
Civil Procedure 59(e) if it is filed within the time limit
set by Rule 59(e). United States v. Nutricology,
Inc., 982 F.2d 394, 397 (9th Cir. 1992). Otherwise, it
is treated as a motion pursuant to Federal Rule of Civil
Procedure 60(b) for relief from a judgment or order.
American Ironworks & Erectors, Inc. v. North
American Const. Corp., 248 F.3d 892, 998-99 (9th Cir.
2001). Because petitioner filed his motion within 28 days
after the entry of judgment, his motion is treated as one
under Rule 59(e). See Lee-Thomas v. Prince George's
County Public Schools, 666 F.3d 244, 247 n.4 (4th Cir.
59(e) motion to alter or amend the judgment is an
“‘extraordinary remedy which should be used
sparingly.'” Allstate Ins. Co. v. Herron,
634 F.3d 1101, 1111 (9th Cir. 2011) (quoting McDowell v.
Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en
banc) (per curium)). In general, there are four grounds upon
which a Rule 59(e) motion may be granted:
(1) if such motion is necessary to correct manifest errors of
law or fact upon which the judgment rests; (2) if such motion
is necessary to present newly discovered or previously
unavailable evidence; (3) if such motion is necessary to
prevent manifest injustice; or (4) if the amendment is
justified by an intervening change in controlling law.
Id. (citing McDowell, 197 F.3d at 1255
n.1). Further, Local Rule 230(j) requires that a motion for
reconsideration state “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, ” and “why the facts or
circumstances were not shown at the time of the prior
motion.” E.D. Cal., Local Rule 230(j)(3)-(4).
one-page motions consists of two arguments: (1) the court has
not shown that he received the findings and recommendations
and (2) he disagrees with the order dismissing the first
amended complaint with leave to amend. However, plaintiff has
not identified a manifest error of fact or law, newly
discovered evidence, or a change in controlling law.
states that “there[']s no
substantial/substantiating evidence that the 3-18-19 order
landed in my hands. In a timely manner that I had in fact a
fair opportunity to file objections to findings and
recommendations (“F&R”) within the time zone
to file one in.” It appears plaintiff claims that he
failed to file objections because he did not receive the
court's findings and recommendations. The docket
indicates that the findings and recommendations were sent to
plaintiff on April 9, 2019 and returned as undeliverable.
However, the docket also reflects that the findings and
recommendations were re-sent and served on plaintiff sometime
after April 11, 2019. Additionally, plaintiffs motion does
not address his failure to file an amended complaint or
respond to the court's order to show cause. Plaintiff
received multiple warnings that the failure to file an
amended complaint would result in a recommendation that the
action be dismissed.
court finds that plaintiff has failed to raise any issue of
fact or law that is sufficient to warrant an alteration of
the judgment entered June 12, 2019.
IT IS HEREBY RECOMMENDED that plaintiffs motion to alter the
judgment (ECF No. 18) be construed as a Rule 59(e) motion and
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty-one
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and served on all parties. Such a document should
be captioned “Objections to Magistrate Judge's
Findings and Recommendations.” Any response to the
objections shall be filed and served within fourteen days
after service of the objections. Plaintiff is advised that