Thompson v. Kernan, et al.
Filing
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ORDER Denying Plaintiff's Motion For Reconsideration (ECF No. 88 ), signed by Judge Oliver W. Wanger on 6/27/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TRAVIS RAY THOMPSON,
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CASE NO. 1:07-cv-00572-OWW-SMS PC
Plaintiff,
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v.
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ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION
ALVAREZ, et al.,
(ECF No. 88)
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Defendants.
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Plaintiff Travis Ray Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 8, 2011, this action was
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dismissed for failure to exhaust administrative remedies. (ECF No. 85.) On June 21, 2011, Plaintiff
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filed a timely motion for reconsideration under Federal Rules of Civil Procedure 59 or 60. (ECF No.
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88.)
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“A motion for reconsideration should not be granted, absent highly unusual circumstances,
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unless the district court is presented with newly discovered evidence, committed clear error, or if
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there is an intervening change in the controlling law,” and it “may not be used to raise arguments or
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present evidence for the first time when they could reasonably have been raised earlier in the
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litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
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2009) (internal quotations marks and citations omitted) (emphasis in original).
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Plaintiff does not argue that newly discovered evidence or an intervening change of the law
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requires reinstatement of this action. All papers and files in this action were considered in deciding
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the motion to dismiss for failure to exhaust administrative remedies. In his motion filed June 21,
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2011, Plaintiff presents the same argument already considered by the Court, that Defendants did not
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meet their burden to show that he did not exhaust administrative remedies and his letter to the
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Inspector General is sufficient to show he exhausted administrative remedies. Plaintiff has not
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demonstrated that he can cure the defects with respect to any federal claim alleged in his complaint.
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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for reconsideration, filed June
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21, 2011, is DENIED.
IT IS SO ORDERED.
Dated:
June 27, 2011
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/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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