(PC) Smith v. Gonzales ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, 1:17-cv-00436-DAD-GSA (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR RECONSIDERATION (ECF No. 78.) 14 J. GONZALES, et al., 15 Defendants. 16 17 18 19 I. BACKGROUND 20 Larry Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 21 this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s First 22 Amended Complaint filed on June 23, 2017, against defendants Sergeant Gonzales, Correctional 23 Officer (C/O) Johnson, C/O Castro, C/O Miner C/O Florez, and C/O Potzernitz for use of excessive 24 force in violation of the Eighth Amendment; against defendant C/O Scaife for failure to protect 25 Plaintiff in violation of the Eighth Amendment; and, against defendant Sergeant Gonzales for 26 retaliation in violation of the First Amendment.1 (ECF No. 12.) 27 1 On February 19, 2020, summary judgment was granted for defendant C/O Fritz. (ECF No. 57.) On October 5, 2018, the court issued an order dismissing all remaining claims and defendants based on Plaintiff’s failure 28 to state a claim. (ECF No. 25.) 1 On April 30, 2020, the court issued an order granting Defendants’ motion for modification 2 of the scheduling order. (ECF No. 77.) The order extended the discovery deadline and the deadline 3 for filing dispositive motions for all parties. (Id.) On May 8, 2020, Plaintiff filed objections to the 4 court’s order. (ECF No. 78.) The court construes Plaintiff’s objections as a motion for 5 reconsideration of the order. 6 II. MOTION FOR RECONSIDERATION 7 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, inadvertence, 8 surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could 9 not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether 10 previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) 11 the judgment is void; or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Rule 12 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be 13 utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 14 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must 15 demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks 16 and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff 17 to show “what new or different facts or circumstances are claimed to exist which did not exist or 18 were not shown upon such prior motion, or what other grounds exist for the motion.” 19 “A motion for reconsideration should not be granted, absent highly unusual circumstances, 20 unless the district court is presented with newly discovered evidence, committed clear error, or if 21 there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma 22 GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks and citations omitted, 23 and “[a] party seeking reconsideration must show more than a disagreement with the Court’s 24 decision, and recapitulation . . . ” of that which was already considered by the Court in rendering 25 its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To 26 succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to 27 reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 28 /// 1 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir. 2 1987). 3 Discussion 4 Plaintiff objects to the court’s order because it granted Defendants’ second motion to 5 modify the Scheduling Order. Plaintiff states his suspicion that Defendants are using the excuse of 6 taking Plaintiff’s deposition as a ruse to delay this case by extending the deadlines. Plaintiff claims 7 that defense counsel used the same excuse to delay this case back in July 2019. 8 The court finds Plaintiff’s argument to be overly speculative. Plaintiff has not set forth facts 9 or law of a strongly convincing nature to induce the court to reverse its prior decision. Therefore, 10 Plaintiff’s motion for reconsideration shall be denied. 11 III. CONCLUSION 12 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for 13 reconsideration, filed on May 8, 2020, is DENIED. 14 IT IS SO ORDERED. 15 16 Dated: July 10, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28