(PC) Sekona v. Perez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 1:19-cv-00400-JLT-GSA (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR RECONSIDERATION 13 vs. OF THE MAGISTRATE JUDGE’S ORDER BY THE DISTRICT JUDGE 14 PEREZ, et al., (Doc. 90.) 15 Defendants. 16 17 I. BACKGROUND 18 Etuate Sekona is a state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. The case now proceeds with Plaintiff’s Third 20 Amended Complaint filed on December 13, 2021, against defendants L. Munoz and C. Sims 21 for failure to protect Plaintiff, in violation of the Eighth Amendment.1 (Doc. 39.) 22 On August 5, 2022, the Court issued the Discovery and Scheduling Order, setting a 23 deadline of February 5, 2023 for Plaintiff to conduct discovery, including the filing of motions 24 to compel. (Doc. 56.) On February 13, 2023, Plaintiff filed a motion for extension of time to 25 file a motion to compel. (Doc. 74). On April 13, 2023, the magistrate judge denied Plaintiff’s 26 1 On February 15, 2022, the Court issued an order dismissing claims and defendants from this case for 27 failure to state a claim. (Doc. 43.) On May 15, 2023, the Court issued an order dismissing defendants 28 Perez and Maldonado from this case for Plaintiff’s failure to provide information to enable service of process. (Doc. 94.) 1 motion for extension of time. (Doc. 87.) 2 On April 28, 2023, Plaintiff filed objections to the April 13, 2023 order, which the 3 Court construes as a motion for reconsideration by the district judge of the magistrate judge’s 4 order. (Doc. 89. On May 8, 2023, Defendants filed an opposition to Plaintiff’s motion for 5 reconsideration. (Doc. 92.) Plaintiff did not file a reply. The motion is now submitted to the 6 Court for resolution. Local Rules 230(l). 7 II. REQUEST FOR RECONSIDERATION BY DISTRICT JUDGE 8 Local Rule 303 provides that “[a] party seeking reconsideration of the Magistrate 9 Judge’s ruling shall file a request for reconsideration by a Judge and serve the Magistrate Judge 10 and all parties. Such request shall specifically designate the ruling, or part thereof, objected to 11 and the basis for that objection. This request shall be captioned “Request for Reconsideration 12 by the District Court of Magistrate Judge’s Ruling.” Local Rule 303(c). “The standard that the 13 assigned Judge shall use in all such requests is the ‘clearly erroneous or contrary to law’ 14 standard set forth in 28 U.S.C. § 636(b)(1)(A).” Local Rule 303(f). “The District Judge in the 15 case must consider timely objections and modify or set aside any part of [a Magistrate Judge’s 16 non-dispositive] order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “A 17 party may serve and file objections to the order within 14 days after being served with a copy[, 18 and a] party may not assign as error a defect in the order not timely objected to. Id. 19 III. DISCUSSION 20 Plaintiff requests review by the district judge of the magistrate judge’s order at Docket 21 No. 87 issued on April 13, 2023 denying Plaintiff’s motion for an extension of time to file a 22 motion to compel. 23 After review of the order, examination of Plaintiff’s arguments in his request for 24 reconsideration, and examination of Defendants’ opposition to the request for reconsideration, 25 the Court does not find the magistrate judge’s rulings in the order denying Plaintiff an 26 extension of time to be erroneous or contrary to law. As the magistrate judge’s order explains 27 (see Doc. 87 at 5), Plaintiff had more than five months to prepare and file a motion to compel 28 and did not show good cause for a further extension of time. Accordingly, Plaintiff’s request eee EOE IE III IEE IGE IEE IED OE 1 || for reconsideration of the April 13, 2023 order shall be denied.” 2 CONCLUSION 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. Plaintiffs request for reconsideration (Doc. 90) of the magistrate judge’s April 5 13, 2023 order is DENIED. 6 2. This case is referred to the magistrate judge for further proceedings. 7 IT IS SO ORDERED. > || Dated: _ June 19, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -—.-/])]|YN NY 27 Plaintiffs request for reconsideration also suggests that the assigned magistrate judge should recuse himself. (Doc. 90 at 3.) However, Plaintiff only points to rulings adverse to Plaintiff entered in this case. This is not a valid 28 || basis for recusal. See United States v. Nelson, 718 F.2d 315, 321 (th Cir. 1983) (“Adverse rulings do not constitute the requisite bias.”).