(PC) Lamon v. Allison ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LOUIS LAMON, No. 2:18-cv-02218-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 KATHLEEN ALLISON, et al., 15 Defendants. 16 17 Plaintiff Barry Louis Lamon (“Plaintiff”), a state prisoner proceeding pro se, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 21, 2020, the magistrate judge filed findings and recommendations which 21 were served on Plaintiff and which contained notice to Plaintiff that any objections to the findings 22 and recommendations were to be filed within fourteen days. (ECF No. 35.) On April 27, 2020, 23 Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 42.) 24 This Court reviews de novo those portions of the proposed findings of fact to which 25 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 26 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 27 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 28 findings of fact to which no objection has been made, the Court assumes its correctness and 1 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 2 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 3 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 4 Having carefully reviewed the entire file under the applicable legal standards, the Court 5 finds the Findings and Recommendations to be supported by the record and by the magistrate 6 judge’s analysis. 7 To the extent Plaintiff’s objections may be construed as a Motion for Reconsideration of 8 the magistrate judge’s Order denying Plaintiff’s Motion for Leave to File a Second Amended 9 Complaint as “unnecessary,” Plaintiff’s motion is DENIED. (ECF No. 42 at 6–8.) A motion for 10 reconsideration “should not be granted, absent highly unusual circumstances, unless the district 11 court is presented with newly discovered evidence, committed clear error, or if there is an 12 intervening change in the controlling law.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th 13 Cir. 1999). Plaintiff has had multiple opportunities to amend and nothing in Plaintiff’s Motion 14 for Reconsideration indicates any manifest errors of law or fact, newly discovered evidence, or 15 highly unusual circumstances that would compel a different result. In sum, Plaintiff fails to 16 establish he is entitled to this extraordinary remedy. Accordingly, the objection is overruled, and 17 to the extent it may be construed as a Motion for Reconsideration, such motion is DENIED. 18 To the extent Plaintiff’s third objection (ECF No. 42 at 17; see also ECF No. 36) may be 19 construed as a Motion for Reconsideration of the magistrate judge’s order denying Plaintiff’s 20 motion to appoint counsel (see ECF Nos. 32–33), such motion is without merit and is DENIED. 21 McDowell, 197 F.3d at 1255. Moreover, upon review of the entire file, the Court finds that it 22 does not appear that the magistrate judge’s ruling was clearly erroneous or contrary to law. Fed. 23 R. Civ. P. 72(a) (a magistrate judge’s order regarding non-dispositive pretrial motions shall be 24 upheld unless “clearly erroneous or contrary to law”); L.R. 303(f). Accordingly, the objection is 25 overruled, and to the extent it may be construed as a Motion for Reconsideration, such motion is 26 DENIED. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. The Findings and Recommendations filed February 21, 2020 (ECF No. 35), are 1 adopted in full; 2 2. Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction (ECF 3 No. 31) is DENIED; 4 3. This action is DISMISSED without prejudice under Rule 41(b) of the Federal Rules of 5 Civil Procedure for failure to follow the Court’s orders; and 6 4. The Clerk of the Court is directed to close this case. 7 IT IS SO ORDERED. 8 DATED: May 11, 2020 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28