(PC) Brookins v. Dwivedi ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 13 vs. (ECF No. 54) 14 RAJENDRA DWIVEDI, ORDER FOR CLERK TO SEND TO PLAINTIFF: 15 Defendant. (1) DOCUMENTS ## 39, 40, 41, 42, 43 & 44, 16 AND 17 (2) A COPY OF THE DOCKET SHEET 18 FOR THIS ACTION 19 20 21 I. BACKGROUND 22 Barry L. Brookins (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 23 action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s Complaint filed on 24 May 10, 2019, against sole defendant Dr. Rajendra Dwivedi (“Defendant”) for failing to provide 25 adequate medical care in violation of the Eighth Amendment. (ECF No. 1.) 26 On March 23, 2020, Plaintiff filed an objection the Magistrate Judge’s order issued on 27 March 10, 2020. (ECF No. 54.) The court construes Plaintiff’s objection as a motion for 28 reconsideration. 1 II. MOTION FOR RECONSIDERATION 2 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 3 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 4 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 5 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 6 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R. 7 Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 8 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 9 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The 10 moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. 11 (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local 12 Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed 13 to exist which did not exist or were not shown upon such prior motion, or what other grounds 14 exist for the motion.” 15 “A motion for reconsideration should not be granted, absent highly unusual 16 circumstances, unless the district court is presented with newly discovered evidence, committed 17 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 18 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 19 and citations omitted, and “[a] party seeking reconsideration must show more than a 20 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 21 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 22 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 23 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 24 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 25 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 26 III. PLAINTIFF’S MOTION 27 Plaintiff seeks reconsideration of the Magistrate Judge’s order denying as moot Plaintiff’s 28 request for entry of default against defendant Dwivedi and denying Plaintiff’s motion for default 1 judgment as premature, without prejudice to renewal of the motion at a later stage of the 2 proceedings. (ECF No. 52.) Plaintiff objects to the order for the following reasons: (1) Plaintiff 3 filed a timely motion for entry of default and neither Defendant nor Defendant’s attorney 4 responded; (2) Plaintiff has not received any copies by the court regarding defendant Dwivedi’s 5 request for the court to set aside the entry of default, filed on February 20, 2020; (3) Plaintiff has 6 not received a copy of defendant Dwivedi’s request for extension of time to file a pleading 7 responsive to the complaint; and, (4) Plaintiff’s request for a default against defendant Dwivedi 8 is supported by a standard of review in United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th 9 Cir. 2003) and Federal Rules of Civil Procedure 12(b)(6). 10 IV. DISCUSSION 11 The court offers this brief explanation of the court’s rulings in the order denying 12 Plaintiff’s request for entry of default and motion for default judgment: 13 Plaintiff’s request for entry of default was denied because defendant 14 Dwivedi filed a request for the court to set aside the entry of default and grant him 15 an extension of time to respond to the complaint. Because the court had not 16 entered default against defendant Dwivedi, Plaintiff’s request to set aside the entry 17 of default was moot. The court found that Defendant’s failure to file a timely 18 response to the complaint was not a willful act on his part, but merely a 19 misunderstanding. Therefore, Plaintiff’s request for entry of default was denied. 20 Plaintiff’s motion for default judgment was denied as premature because a 21 motion for default judgment should not be filed until after default is entered, and 22 Plaintiff filed it before default was entered. 23 Plaintiff does not set forth facts or law of a strongly convincing nature in his motion for 24 reconsideration to induce the court to reverse its prior decisions. Therefore, Plaintiff’s motion for 25 reconsideration shall be denied. 26 It is not apparent why Plaintiff did not receive some of the documents that were served 27 upon him. According to the court’s record, Plaintiff has had the same address throughout this 28 case, and the court’s methods of service have not changed. The court shall send the documents 1 on Plaintiff at his address of record, Kern Valley State Prison, P.O. Box 6000, Delano, California. 2 In addition, the clerk shall be directed to send Plaintiff a copy of the docket sheet, for his review. 3 V. CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s motion for reconsideration, filed on March 23, 2020, is DENIED; and 6 2. The Clerk is directed to send Plaintiff: 7 (1) Documents #39, 40, 41, 42, 43, and 44; and 8 (2) A copy of the docket sheet for this action. 9 IT IS SO ORDERED. 10 11 Dated: April 1, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28