(PC) Shepard v. Borum ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT SHEPARD, No. 1:18-cv-00277-DAD-JDP (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 M. BORUM, Correctional Officer at Kern PLAINTIFF’S MOTION FOR SUMMARY Valley State Prison, et al., JUDGMENT, AND DENYING PLAINTIFF’S 15 MOTION FOR RECONSIDERATION Defendants. 16 (Doc. Nos. 28, 53, 59) 17 18 19 Plaintiff Lamont Shepard is a state prisoner proceeding pro se in this civil rights action 20 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 21 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On March 16, 2020, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff’s motion for summary judgment be denied because there are genuine 24 disputes of material facts precluding summary judgment. (Doc. No. 53.) The magistrate judge 25 simultaneously discharged an order to show cause against defendants. (Id.) The findings and 26 recommendations were served upon both parties and contained notice that any objections were to 27 be filed within fourteen (14) days of service. (Id. at 5.) After receiving an extension of time to do 28 ///// 1 so, plaintiff filed timely objections to the findings and recommendations on April 8, 2020. (Doc. 2 Nos. 58, 61.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 5 including plaintiff’s objections, the court concludes that the findings and recommendations are 6 supported by the record and proper analysis. 7 In his objections, plaintiff argues that summary judgment should be granted in his favor 8 by attempting to discredit defendants’ factual assertions. (Doc. No. 61.) However, the 9 admissions that plaintiff relies on do not eliminate the dispute in facts between the parties. As 10 defendants point out, the fact that defendants Borum and Acebedo admitted to error does not 11 necessarily mean that they engaged in retaliation. (Doc. No. 52 at 8–9.) Accordingly, the 12 granting of summary judgment in favor of plaintiff is not appropriate given the dispute in material 13 facts established by the evidence before the court. 14 Separately, on March 30, 2020, plaintiff also filed a motion for reconsideration of the 15 magistrate judge’s decision to discharge the order to show cause directed to defendants. (Doc. 16 No. 59; see Doc. Nos. 50, 53.) 17 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 18 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 19 for the following reasons: 20 (1) mistake, inadvertence, surprise, or excusable neglect; 21 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial 22 under Rule 59(b); 23 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 24 (4) the judgment is void; 25 (5) the judgment has been satisfied, released, or discharged; it is 26 based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 27 (6) any other reason that justifies relief. 28 wOow 4:40 POMERAT POO FP OAYyt VI 1 | Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, 2 | typically “not more than one year after the judgment or order or the date of the proceeding.” Jd. 3 | “A motion for reconsideration should not be granted, absent highly unusual circumstances, unless 4 | the district court is presented with newly discovered evidence, committed clear error, or if there is 5 | an intervening change in the controlling law,” and it “may not be used to raise arguments or 6 | present evidence for the first time when they could reasonably have been raised earlier in the 7 | litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th 8 | Cir. 2009) Gnternal quotation marks and citations omitted) (emphasis in original). 9 Here, plaintiff merely raises the same arguments included in his objections to the findings 10 | and recommendations. (Doc. No. 59.) For the same reasons noted above, the court concludes 11 | that plaintiff's arguments do not provide a basis for reconsideration. 12 Accordingly: 13 1. The findings and recommendations issued on March 16, 2020 (Doc. No. 53) are 14 adopted in full; 15 2. Plaintiff's motion for summary judgment (Doc. No. 29) is denied; and 16 3. Plaintiff's motion for reconsideration (Doc. No. 59) is denied. 17 | IT IS SO ORDERED. me □ Dated: _-May 28, 2020 Yi A Dra 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28