(PC) Dillingham v. Garcia ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JERRY DILLINGHAM, 1:19-cv-00461-AWI-GSA-PC 8 Plaintiff, ORDER DENYING MOTION FOR RECONSIDERATION 9 vs. (ECF No. 18.) 10 J. GARCIA, et al., 11 Defendants. 12 13 Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 14 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 15 commencing this action on April 9, 2019. (ECF No. 1.) 16 I. BACKGROUND 17 On April 9, 2019, Plaintiff filed a motion for an emergency temporary restraining order, 18 which the court construed as a request for preliminary injunctive relief. (ECF No. 2.) On June 19 10, 2019, the assigned magistrate judge entered findings and recommendations, recommending 20 that Plaintiff’s motion be denied. (ECF No. 10.) Plaintiff was granted fourteen days in which to 21 file objections to the findings and recommendations. (Id.) The fourteen-day time period expired 22 and Plaintiff did not file objections or any other response to the findings and recommendations. 23 On July 31, 2019, the district court adopted the findings and recommendations in full and denied 24 Plaintiff’s motion for preliminary injunctive relief. (ECF No. 13.) 25 On August 16, 2019, Plaintiff filed a motion for administrative relief. (ECF No. 14.) In 26 the motion, Plaintiff asserted that he received the district court’s order of July 31, 2019, denying 27 his motion for preliminary injunctive relief, but he never received the findings and 28 recommendations entered on June 10, 2019. Plaintiff requested a copy of the findings and 1 recommendations and the opportunity to file objections to the findings and recommendations. 2 On October 17, 2019, the court granted Plaintiff’s motion and granted him leave to file objections 3 within thirty days. (ECF No. 15.) On November 18, 2019, Plaintiff requested an extension of 4 time to file objections, which was granted on November 21, 2019. (ECF Nos. 16, 17.) 5 On November 25, 2019, Plaintiff filed objections to the findings and recommendations, 6 which the court now construes as a motion for reconsideration of the district court’s order 7 adopting the findings and recommendations. (ECF No. 18.) 8 II. MOTION FOR RECONSIDERATION 9 “A motion for reconsideration should not be granted, absent highly unusual 10 circumstances, unless the district court is presented with newly discovered evidence, committed 11 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 12 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 13 and citations omitted), and “[a] party seeking reconsideration must show more than a 14 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 15 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 16 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 17 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 18 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 19 part on other grounds, 828 F.2d 514 (9th Cir. 1987). In seeking reconsideration of an order, 20 Local Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are 21 claimed to exist which did not exist or were not shown upon such prior motion, or what other 22 grounds exist for the motion.” 23 III. DISCUSSION 24 As the magistrate judge correctly stated in the findings and recommendations, the court 25 lacks jurisdiction to grant Plaintiff’s motion for prospective relief1 because such an order would 26 1 In his motion for preliminary injunctive relief filed on April 9, 2019, Plaintiff requests to be 27 placed on permanent single cell housing status and to be transported to Atascadero State Hospital in protective custody. Plaintiff also seeks protection from harassment, reprisal tactics, or other threats made because he filed a 28 civil complaint, as well as protection from excessive force and false charges against him. □□□ □□ ANN PN UC POO IOP EN MV VI 1 remedy any of Plaintiffs claims in this case, which are based on past events. Plaintiff does 2 ||not set forth facts or law of a strongly convincing nature in his motion for reconsideration to 3 ||induce the Court to reverse its prior decision. Therefore, Plaintiff's motion for reconsideration 4 || shall be denied. 5 CONCLUSION 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Plaintiff's motion for reconsideration, filed on November 25, 2019, is DENIED; 8 and 9 2. The district court’s order issued on July 31, 2019, which adopted the magistrate 10 judge’s findings and recommendations and denied Plaintiff's motion for 11 preliminary injunctive relief, remains in full force and effect. 12 3 IT IS SO ORDERED. Dp 4 Dated: _ October 8, 2020 7 Zz 7 Cb Lec _-SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28