Wilson v. Segovia ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LUCIOUS WILSON, Case No.: 19cv2254-TWR-MDD 12 Plaintiff, ORDER DENYING PLAINTIFF'S 13 v. MOTION FOR RECONSIDERATION 14 SGT. SEGOVIA, et al., Defendants. 15 [ECF No. 44] 16 17 On November 9, 2020, nunc pro tunc, Lucious Wilson (“Plaintiff”), a 18 state prisoner proceeding pro se and in forma pauperis, filed a motion for 19 reconsideration of the Court’s October 13, 2020 Order denying Plaintiff’s 20 Pitchess motion. (ECF No. 44). In the October 13, 2020 Order, the Court 21 denied Plaintiff’s request for disclosure of “all incidents of excessive force or 22 any other acts of violence” in Defendants’ personnel files as untimely. (ECF 23 No. 35 at 2). As explained in the Order, a Pitchess motion is not binding on 24 this Court and Plaintiff should have propounded discovery under Federal 25 Rule of Civil Procedure 34(a) to obtain Defendants’ personnel files. (Id. at 3). 26 Even assuming Plaintiff did properly propound discovery, the Court found 1 Court’s scheduling order. (Id.). Accordingly, the Court denied Plaintiff’s 2 motion. (Id.). 3 A motion for reconsideration may be brought under Federal Rules of 4 Civil procedure 59(e) or 60(b). A motion is treated as a motion to alter or 5 amend judgment under Rule 59(e) if it is filed within twenty-eight days of 6 entry of judgment or the ruling; otherwise, it is treated as a Rule 60(b) 7 motion for relief from a judgment or order. Am. Ironworks & Erectors, Inc. v. 8 N. Am. Construction Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (a motion for 9 reconsideration is treated as a motion under Rule 59(e) if it is timely filed 10 under that rule and as a motion under Rule 60(b) otherwise). Here, the order 11 referenced was filed on October 13, 2020. (ECF No. 35). Accordingly, 12 Plaintiff’s motion is properly brought under Rule 59(e). See Am. Ironworks & 13 Erectors, Inc., 248 F.3d at 898-99. 14 Pursuant to Federal Rule of Civil Procedure 59(e), district courts have 15 the power to reconsider a previous ruling or entry of judgment. Under Rule 16 59(e), it is appropriate to alter or amend a previous ruling if “(1) the district 17 court is presented with newly discovered evidence, (2) the district court 18 committed clear error or made an initial decision that was manifestly unjust, 19 or (3) there is an intervening change in controlling law.” United Nat. Ins. Co. 20 v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009) (citation 21 omitted). 22 Plaintiff argues reconsideration is warranted because Defendants did 23 not oppose his Pitchess motion. (ECF No. 44). A party’s failure to oppose a 24 motion does not require the Court to grant it. See Civ. L.R. 7.1(f)(3)(c) (noting 25 that a failure to file an opposition may constitute a consent to the granting of 26 a motion). As such, Plaintiff has not shown newly discovered evidence, that 1 ||manifestly unjust, or an intervening change in controlling law. See United 9 || Nat. Ins. Co., 555 F.3d at 780. 3 Accordingly, the Court DENIES Plaintiff's motion for reconsideration. 4 IT IS SO ORDERED. Dated: November 12, 2020 tlh | [ Hon. Mitchell D. Dembin 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27