(HC)Nieto v. Cisneros ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE NIETO, ) Case No.: 1:21-cv-1582 JLT HBK (HC) ) 12 Petitioner, ) ORDER CONSTRUING PETITIONER’S ) UNTIMELY OBJECTIONS AS A MOTION FOR 13 v. ) RECONSIDERATION AND DENYING THAT ) MOTION 14 THERESA CISNEROS, ) ) (Doc. 26) 15 Respondent. ) ) 16 ) 17 Previously, the Court granted the Respondent’s motion to dismiss the petition as unexhausted. 18 (Doc. 24.) The assigned magistrate judge issued Findings and Recommendations granting the motion 19 to dismiss on July 28, 2022 and ordered Petitioner to file any objections within 14 days. (Doc. 23.) 20 No objections were filed, and the Court issued an order adopting the Findings and Recommendations 21 on October 11, 2022. (Doc. 24.) 22 On October 13, 2022, Petitioner filed an untimely response to the Findings and 23 Recommendations, reporting that he had been in administrative segregation and “had no access to the 24 law library.” (Doc. 26 at 1.) In addition, he reported that “a lot of [his] stuff has been lost or stolen.” 25 (Id.) Thus, Petitioner request the court “consider” his situation. (Id.) In an abundance of caution, the 26 Court will construe Petitioner’s untimely response as a motion for reconsideration pursuant to Rule 60 27 of the Federal Rules of Civil Procedure. 28 Rule 60(b) governs the reconsideration of final orders of the district court, and permits a 1 || district court to relieve a party from a final order or judgment on grounds of: “(1) mistake, 2 || inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud ... of an 3 || adverse party; (4) the judgment is void; (5) the judgment has been satisfied ... or (6) any other reason 4 || justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). “A motion for 5 || reconsideration should not be granted, absent highly unusual circumstances, unless the district court 1 6 || presented with newly discovered evidence, committed clear error, or if there is an intervening change 7 the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 8 || 880 (9th Cir. 2009) (internal quotations marks, citations omitted). In addition, “[a] party seeking 9 || reconsideration must show more than a disagreement with the Court's decision, and recapitulation” ot 10 || that which was already considered by the Court in rendering its decision, United States. v. Westlands 11 || Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (internal quotation marks, citation omitted} 12 In the response to the Findings and Recommendations and request for the Court to “consider” 13 || his situation, Petitioner does not make any discernable argument. Rather, he simply informed the 14 || Court of his status in admirative segregation, and that many of his items have been stolen. There are 15 also many documents attached, including medical records from 2013, and Petitioner’s assignment to 16 || the administrative segregation unit in July 2021. (See Doc. 26 at 2-8.) There are no documents 17 || addressing the findings of the Court related to his failure to exhaust his state judicial remedies. (See 18 || generally Doc. 26.) 19 Petitioner has not identified any new or different facts, circumstances, or evidence such that 20 || reconsideration of the prior order and judgment would be appropriate. Accordingly, the Court 21 |} ORDERS: Plaintiff's response to the Findings and Recommendations, construed as a motion for 22 || reconsideration, is DENIED. 23 24 IT IS SO ORDERED. 25 |! Dated: _ November 8, 2022 ( LAW pA buy In 26 TED STATES DISTRICT JUDGE 27 28