(PC) Witkin v. Wise ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Michael Witkin, No. 2:19-cv-0974-KJM-KJN-P 12 Plaintiff, ORDER 13 Vv. 14 D. Wise, et al., 15 Defendants. 16 17 Plaintiff Michael Witkin, a state prisoner proceeding pro se, moves for reconsideration of 18 | this court’s order adopting the Magistrate Judge’s findings and recommendations and granting 19 | summary judgment in part. See Order, ECF No. 65; Mot. Recons., ECF No. 68. Mr. Witkin also 20 | requests that the court amend its order under Rule 52(b). Mot. Am., ECF No. 69. The court 21 | construes these motions as a single request to reconsider under the court’s inherent authority and 22 | Federal Rule of Civil Procedure 54(b). See City of Los Angeles v. Santa Monica BayKeeper, 23 | 254 F.3d 882, 886 (9th Cir. 2001); Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. 24 | v. California, 649 F. Supp. 2d 1063, 1069 (E.D. Cal. 2009). Reconsideration is appropriate if 25 | there has been an intervening change in controlling law, new evidence has become available, or it 26 | is necessary to correct clear error or prevent manifest injustice. Cachil Dehe Band, 649 F. Supp. 27 | 2d at 1069. 28 | //// 1 Mr. Witkin argues reconsideration is necessary to correct clear error, but he has not 2 identified clear error. First, contrary to the arguments in his current motion, see Mot. Recons. at 3 2–3, the record shows he did not appeal the grievance in question beyond the second level after it 4 was reinstated and again denied. See Petty Decl. ¶ 20 & Ex. L, ECF No. 31-5; Mosely Decl. ¶ 15 5 & Ex. G, ECF No. 31-4. Second, controlling precedent forecloses his argument that he was not 6 required to pursue the reinstated grievance through the third level of review. See Jackson v. 7 Fong, 870 F.3d 928, 933 (9th Cir. 2017) (citing Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 8 2010)). And third, the record shows administrative relief remained “available” to him under Ross 9 v. Blake, 136 S. Ct. 1850 (2016), because he succeeded in reinstating the disputed grievance. 10 The motions for reconsideration and to amend are denied. No similar motions will be 11 considered in the future. 12 This order resolves ECF Nos. 68 and 69. 13 IT IS SO ORDERED. 14 DATED: January 11, 2021.