(PC) Washington v. Hicks ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRACYE BENARD WASHINGTON, 1:19-cv-00156-NONE-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS FOR RECONSIDERATION 13 vs. (ECF Nos. 48, 49.) 14 HICKS, et al., 15 Defendants. 16 17 18 I. BACKGROUND 19 Tracye Benard Washington (“Plaintiff”) is a state prisoner proceeding pro se with this 20 civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 21 Complaint filed on February 5, 2019, against defendants Sergeant David Hicks and Correctional 22 Officer Hipolito Rocha (“Defendants”) for use of excessive force in violation of the Eighth 23 Amendment. (ECF No. 1.)1 24 On May 13, 2021, the court issued an order granting Defendants’ motion to modify the 25 scheduling order extending the deadlines for discovery and the filing of dispositive motions for 26 all parties. (ECF No. 46.) On May 17, 2021, and May 19, 2021, Plaintiff filed oppositions to 27 28 1 On June 22, 2020, the court issued an order dismissing all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (ECF No. 19.) 1 Defendants’ request for extension of discovery and modification of the scheduling order, which 2 the court construes as motions for reconsideration of the court’s order issued on May 13, 2021. 3 (ECF Nos. 47, 48.) 4 II. MOTION FOR RECONSIDERATION 5 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 6 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 7 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 8 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 9 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R. 10 Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 11 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 12 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The 13 moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. 14 (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local 15 Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed 16 to exist which did not exist or were not shown upon such prior motion, or what other grounds 17 exist for the motion.” 18 “A motion for reconsideration should not be granted, absent highly unusual 19 circumstances, unless the district court is presented with newly discovered evidence, committed 20 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 21 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks 22 and citations omitted, and “[a] party seeking reconsideration must show more than a 23 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 24 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 25 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 26 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 27 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 28 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 1 III. DISCUSSION 2 Plaintiff requests reconsideration of the court’s order issued on May 13, 2021, in which 3 the court granted Defendants’ motion to modify the scheduling order and extending the deadlines 4 for discovery and the filing of dispositive motions, for all parties. Plaintiff argues that defense 5 counsel has not appropriately participated in the discovery process. 6 Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court 7 to reverse its prior decision. Therefore, Plaintiff’s motion for reconsideration shall be denied. 8 IV. CONCLUSION 9 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motions for reconsideration, 10 filed on May 17, 2021, and May 19, 2021, are DENIED. 11 IT IS SO ORDERED. 12 13 Dated: May 22, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28