Hammler v. Aviles

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No.: 17-cv-01185-AJB-WVG 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR RECONSIDERATION 14 F. AVILES, (Doc. No. 75) 15 Defendant. 16 17 Before the Court is pro se prisoner Allen Hammler’s (“Plaintiff”) motion for 18 reconsideration. (Doc. No. 75.) Plaintiff requests that the Court reconsider its decision to 19 adopt the Magistrate Judge’s Report and Recommendation (“R&R”) and grant Defendant’s 20 motion for summary judgment. (Id. at 1.) For the reasons set forth below, the Court 21 DENIES Plaintiff’s motion for reconsideration. 22 Reconsideration is “an ‘extraordinary remedy, to be used sparingly in the interests 23 of finality and conservation of judicial resources.’” Wood v. Ryan, 759 F.3d 1117, 1121 24 (9th Cir. 2014) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 25 2000). “[A] motion for reconsideration should not be granted, absent highly unusual 26 circumstances, unless the district court is presented with newly discovered evidence, 27 committed clear error, or if there is an intervening change in the controlling law.” Marlyn 28 1 || Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) 2 || (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 3 Plaintiff does not argue newly discovered evidence, clear error, or an intervening 4 ||change in law. Instead, he requests reconsideration based solely on a claim that prison 5 || officials precluded him from filing objections to the Magistrate Judge’s R&R. (Doc. No. 6 || 75 at 1.) According to Plaintiff, on January 4, 2022, prison officials forcefully removed 7 || him from his cell and made him leave his legal files inside. (/d. at 2.) Plaintiff further claims 8 when prison officials returned his documents to him on January 6, 2022, the R&R had 9 “gone missing.” (/d. at 3.) He argues that because the R&R was missing, he did not know 10 || the deadline for filing objections. (/d. at 2-3.) The Court is unpersuaded. 11 Plaintiff does not allege that he never received the R&R issued by the Magistrate 12 || Judge on November 23, 2021. (Doc. No. 72.) Moreover, the R&R was not returned to the 13 || Court as undeliverable. Thus, the Court finds that Plaintiff received the R&R in the normal 14 ||course and was aware that the deadline to file his objections was December 30, 2021. 15 || Plaintiffs receipt of the R&R is further supported by his description that it later went 16 || “missing.” (Doc. No. 75 at 3.) Critically, despite being aware of the December 30 deadline, 17 || Plaintiff made no request for an extension of time to file his objections. And because the 18 || prison officials’ alleged conduct occurred in January—after the filing deadline—it could 19 have been the reason for Plaintiff’s failure to file a timely objection. 20 For the foregoing reasons, Plaintiffs claim that prison officials precluded him from 21 filing objections is without merit. Accordingly, there being no highly unusual 22 || circumstances warranting the extraordinary remedy of reconsideration, the Court DENIES 23 || Plaintiff's motion. (Doc. No. 75.) 24 IT IS SO ORDERED. 25 ||Dated: February 23, 2022 © g 26 Hon. Anthony J.Battaglia 27 United States District Judge 28