(PC) Rodriguez v. Kernan ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 PEDRO RODRIGUEZ, 1:19-cv-00060-GSA-PC 7 Plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION 8 v. (ECF No. 18.) 9 SCOTT KERNAN, et al., THIRTY-DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT 10 Defendants. PURSUANT TO FIRST SCREENING ORDER 11 12 13 14 15 I. BACKGROUND 16 Pedro Rodriguez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 17 with this civil rights action pursuant to 42 U.S.C. § 1983. On January 14, 2019, Plaintiff filed 18 the Complaint commencing this action. (ECF No. 1.) On April 8, 2020, the court issued the first 19 screening order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF 20 No. 9.) Plaintiff was advised that he was not permitted to add unrelated claims or allegations of 21 events occurring after January 14, 2019 in the First Amended Complaint. (Id. at 9 at 14:10-13.) 22 On May 22, 2020, Plaintiff filed the First Amended Complaint. (ECF No. 12.) The First 23 Amended Complaint contained allegations of later-occurring events that took place after the 24 original Complaint was filed. (Id.) On June 29, 2020, the court issued a second screening order 25 dismissing the First Amended Complaint for Plaintiff’s failure to comply with the court’s first 26 screening order, with leave to amend. (ECF No. 13.) Plaintiff was granted thirty days in which 27 to file a Second Amended Complaint that complies with the court’s first screening order. (Id.) 28 1 On August 27, 2020, Plaintiff filed objections to the court’s second screening order. (ECF 2 No. 16.) The court construed Plaintiff’s objections as a motion for reconsideration of the court’s 3 second screening order. On August 31, 2020, the court denied Plaintiff’s motion for 4 reconsideration of the court’s second screening order. (ECF No. 17.) 5 On October 1, 2020, Plaintiff filed objections to the court’s order denying his motion for 6 reconsideration. (ECF No. 18.) The court construes Plaintiff’s objections as a motion for 7 reconsideration of the court’s order denying Plaintiff’s prior motion for reconsideration. 8 II. MOTION FOR RECONSIDERATION 9 Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies 10 relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice 11 and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 12 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party 13 “must demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation 14 marks and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires 15 Plaintiff to show “what new or different facts or circumstances are claimed to exist which did 16 not exist or were not shown upon such prior motion, or what other grounds exist for the motion.” 17 “A motion for reconsideration should not be granted, absent highly unusual 18 circumstances, unless the district court is presented with newly discovered evidence, committed 19 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 20 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks 21 and citations omitted, and “[a] party seeking reconsideration must show more than a 22 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 23 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 24 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 25 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 26 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 27 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 28 /// 1 III. DISCUSSION 2 The court finds that Plaintiff has not set forth facts or law of a strongly convincing nature 3 to induce the court to reverse its prior decision. Therefore, Plaintiff’s motion for reconsideration 4 filed on October 1, 2020, shall be denied. 5 IV. CONCLUSION 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s motion for reconsideration, filed on October 1, 2020, is DENIED; 8 2. Within thirty days from the date of service of this order, Plaintiff shall file a 9 Second Amended Complaint which complies with the court’s second screening 10 order filed on June 29, 2020; 11 3. No other motions for reconsideration of this matter shall be considered by the 12 court; and 13 4. Plaintiff’s failure to comply with this order shall result in a recommendation that 14 this action be dismissed for failure to state a claim. 15 IT IS SO ORDERED. 16 17 Dated: October 7, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28