(PC) Smith v. Allison ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FREDERICK WAYNE SMITH, No. 1:22-cv-01580-JLT-SAB (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 11 v. (Docs. 34, 35) 12 KATHLEEN ALLISON, et al. 13 Defendants. 14 15 16 Plaintiff is proceeding pro se in this action filed pursuant to 42 U.S.C. § 1983. 17 On October 3, 2023, the Court denied Plaintiff’s request for injunctive relief finding that 18 Plaintiff presented only general fear for his safety based on the prior incidents. (Doc. 33.) 19 Currently before is Plaintiff’s objections and request for reconsideration of the Court’s 20 October 3, 2023, order. (Docs. 34, 35.) 21 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 22 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 23 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 24 evidence ...; (3) fraud ... of an adverse party; (4) the judgment is void; (5) the judgment has been 25 satisfied ... or (6) any other reason justifying relief from the operation of the judgment.” Fed. R. 26 Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any event 27 “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 28 1 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the 2 | interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 3 | 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 F.3d 737, 4 | 749 (8th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking reconsideration 5 | under Rule 60, the moving party “must demonstrate both injury and circumstances beyond his 6 | control.” Harvest, 531 F.3d at 749 (internal quotation marks and citation omitted). 7 “A motion for reconsideration should not be granted, absent highly unusual 8 | circumstances, unless the district court is presented with newly discovered evidence, committed 9 | clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 10 || raise arguments or present evidence for the first time when they could reasonably have been 11 || raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 12 | F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 13 | original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or 14 | different facts or circumstances are claimed to exist which did not exist or were not shown” 15 | previously, “what other grounds exist for the motion,” and “why the facts or circumstances were 16 | not shown” at the time the substance of the order which is objected to was considered. 17 Here, after review of Plaintiff's motion, the Court finds that Plaintiff has not presented 18 | any new or different facts, circumstances, or evidence such that reconsideration of the prior order 19 | and judgment would be appropriate. Plaintiff simply repeats his arguments already considered by 20 | the Court, and Plaintiff does not meaningfully challenge the essential point of the findings of the 21 | findings and recommendations or order adopting, namely that Plaintiff has not demonstrated an 22 | imminent threat of irreparable harm. Accordingly, Plaintiff's motion for reconsideration (Doc. 23 | 35) of the Court’s October 3, 2023, order is DENIED. 24 95 IT IS SO ORDERED. 26 Dated: _ October 20, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 27 28