Arrant v. Zambrano ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY ARRANT Case No.: 3:20-cv-01220-JLS-AGS CDCR No. K98602, 12 ORDER DENYING MOTION TO Plaintiff, 13 ALTER OR AMEND JUDGMENT vs. UNDER FED. R. CIV. PRO. 59(E) 14 M. ZAMBRANO, et al., 15 Defendants. (ECF No. 17) 16 17 18 19 On June 29, 2020, Plaintiff Melvin Ray Arrant filed a civil action pursuant to 42 20 U.S.C. § 1983, together with a motion to proceed in forma pauperis (“IFP”) and a motion 21 for temporary restraining order (“TRO”). ECF Nos. 1–3. On September 9, 2020, the Court 22 granted Plaintiff’s IFP, denied his TRO, and dismissed the Complaint pursuant to 28 U.S.C. 23 § 1915(e)(2) and § 1915A(b). ECF No. 6. The Court granted Plaintiff sixty (60) days to 24 file an amended complaint. Id. 25 On September 30, 2020, Plaintiff filed a document entitled “Plaintiff’s Objections 26 to Magistrate Judge Finding and Recommendations to Dismiss Plaintiff’s Complaint for 27 Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),” which the 28 /// 1 Court construed as a motion for reconsideration. ECF No. 8. The Court denied the motion 2 on October 15, 2020. ECF No. 10. 3 Plaintiff then filed an Amended Complaint on October 15, 2020. ECF No. 10. The 4 Court dismissed the Amended Complaint pursuant to 28 U.S.C. §§1915(e)(2) and 5 1915A(b) on December 11, 2020 without further leave to amend because the Court found 6 any amendment would be futile. ECF No. 11. 7 On January 6, 2021, Plaintiff filed a motion for reconsideration asking the Court to 8 reconsider its December 11, 2020 Order dismissing his case. ECF No. 14. The Court 9 denied the motion on March 1, 2021. ECF No. 15. Plaintiff has now filed a Motion to 10 Alter or Amend the Judgment Under Federal Rules of Civil Procedure Rule 59(e). ECF 11 No. 17. 12 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with 13 newly discovered evidence, (2) the district court committed clear error or made an initial 14 decision that was manifestly unjust, or (3) there is an intervening change in controlling 15 law.’” Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City 16 of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a substantive 17 change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) 18 (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)), and “is 19 an extraordinary remedy which should be used sparingly,” McDowell v. Calderon, 197 20 F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to “relitigate old matters, 21 or to raise arguments or present evidence that could have been raised prior to the entry of 22 judgment.” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1117 (D. Nev. 23 2013) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d 24 ed. 1995)). 25 Like his previous filings, Plaintiff argues the Court wrongly dismissed his case and 26 repeats the allegations he made in his Original Complaint, his Amended Complaint, and 27 his motions for reconsideration. In order to justify reconsideration, Local Civil Rule 7.1(i) 28 requires Plaintiff to show that “new or different facts and circumstances . . . exist which 1 || did not exist, or were not shown,” at the time the Court denied his last motion to reconsider 2 March 1, 2021. See S.D. Cal. CivLR 7.1(/). “Evidence is only newly discover[ed] if it 3 || was in fact previously unavailable—i.e. the party asserting the evidence, acting with 4 ||reasonable diligence, could not have previously discovered the evidence.” Vasquez v. City 5 || of Idaho Falls, 2018 WL 1123865, at *3 (D. Idaho 2018) (citing Zimmerman, 255 F.3d at 6 740). Plaintiff has not presented any newly discovered evidence. Ybarra, 656 F.3d at 998. 7 ||Nor has he demonstrated that “the district court committed clear error or made an initial 8 ||decision that was manifestly unjust, or . . . [that] there [was] an intervening change in 9 |/controlling law.” Jd. Accordingly, his Motion for Reconsideration (ECF No. 17) is 10 || DENIED. 11 IT IS SO ORDERED. 12 ||Dated: April 14, 2021 . tt 13 jen Janis L. Sammartino 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3