Dent v. Silbaugh et al
Filing
80
MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 6/6/11 ORDERING plaintiff's motion 76 is DENIED. (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRIAN DENT,
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No. 2:08-cv-00736-MCE-JFM
Plaintiff,
v.
MEMORANDUM AND ORDER
D. SILBAUGH, et al.,
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Defendants.
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Plaintiff Brian Dent (“Plaintiff”) is a state prisoner
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prosecuting a civil rights action pursuant to 42 U.S.C. § 1983.
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After his remaining claims were dismissed without prejudice for
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failure to exhaust his administrative remedies, Plaintiff’s
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action proceeded on the first claim in his Third Amended
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Complaint.
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Defendant H. Murthy (“Defendant”) filed a false rules violation
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report against Plaintiff in retaliation for Plaintiff’s acts.
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This Court granted Defendant’s subsequent Motion for Summary
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Judgment disposing of that claim, and judgment was entered on
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March 31, 2011.
In this last remaining claim, Plaintiff alleged that
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Presently before the Court is Plaintiff’s Motion to Alter or
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Amend the Judgment Under Federal Rule of Civil Procedure 59(e)
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(“Motion”).
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DENIED.1
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For the following reasons, Plaintiff’s Motion is
A court should be loathe to revisit its own decisions unless
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extraordinary circumstances show that its prior decision was
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clearly erroneous or would work a manifest injustice.
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Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
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(1988).
This principle is generally embodied in the law of the
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case doctrine.
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questions once resolved in ongoing litigation.
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Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 36 n.5 (9th Cir.
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1989).
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That doctrine counsels against reopening
Pyramid Lake
“[T]he district court enjoys considerable discretion in
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granting or denying [a motion to amend or alter a judgment].”
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McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir 1999).
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“It is appropriate for a court to alter or amend judgment under
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Rule 59(e) if ‘(1) the district court is presented with newly
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discovered evidence, (2) the district court committed clear error
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or made an initial decision that was manifestly unjust, or
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(3) there is an intervening change in controlling law.’”
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///
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Since filing his Motion, Plaintiff has noticed an appeal.
Plaintiff’s notice of appeal does not divest this court of
jurisdiction to address his Motion. Fed. R. App. P.
4(a)(4)(B)(i) (“If a party files a notice of appeal after the
court announces or enters a judgment--but before it disposes of
any motion [to alter or amend the judgment under Rule 59]--the
notice becomes effective to appeal a judgment or order, in whole
or in part, when the order disposing of the last such remaining
motion is entered.”); Halloum v. Intel Corp., 307 Fed. Appx. 110,
112 (9th Cir. 2009).
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Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008) (quoting
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Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)).
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Plaintiff has not offered any newly discovered evidence, nor
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has he argued that there has been an intervening change in the
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law.
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Court’s decision to grant Defendant’s Motion for Summary Judgment
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and to enter judgment in Defendant’s favor.
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the Court is insufficient to justify alteration or amendment of
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the judgment, and Plaintiff’s Motion to Alter or Amend the
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Rather, Plaintiff asserts only his disagreement with the
Disagreement with
Judgment (ECF No. 76) is thus DENIED.
IT IS SO ORDERED.
Dated: June 6, 2011
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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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