-SKO (PC) Hightower v. Schwarzenegger, et al, No. 1:2004cv06028 - Document 165 (E.D. Cal. 2011)

Court Description: ORDER DENYING Plaintiff's Motion for Reconsideration 152 , 155 signed by Judge Oliver W. Wanger on 5/7/2011. (Jessen, A)
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-SKO (PC) Hightower v. Schwarzenegger, et al Doc. 165 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS A. HIGHTOWER, 10 CASE (PC) NO. 1:04-cv-06028-OWW-SKO Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 11 v. 12 (Docs. 152, 155) SCHWARZENEGGER, et al., 13 Defendants. 14 15 / 16 I. Order 17 A. Procedural History 18 Plaintiff, Thomas A. Hightower (“Plaintiff”) is a state 19 prisoner proceeding pro se and in forma pauperis in this civil 20 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this 21 action on July 29, 2004. (Doc. 1.) February 24, 2006, the Court 22 dismissed Plaintiff’s Complaint, with leave to amend, for failure 23 to comply with Federal Rule of Civil Procedure 8(a). (Doc. 13.) 24 Plaintiff filed the First Amended Complaint June 28, 2006. (Doc. 25 21.) March 8, 2007, the Court dismissed Plaintiff’s First 26 Amended Complaint, for failure to state cognizable claims, with 27 leave to amend. (Doc. 23.) August 13, 2007, Plaintiff filed his 28 1 Dockets.Justia.com 1 Second Amended Complaint. 2 and Recommendations issued to dismiss uncognizable claims and to 3 allow service on cognizable claims, which were adopted July 8, 4 2008. 5 dismiss under Fed. R. Civ. P. 12(b) and 12(b)(6), on which 6 findings and recommendation to grant issued and were adopted. 7 (Docs. 69, 116, 121.) 8 motions to dismiss under Fed. R. Civ. P. 12(b) and 12(b)(6). 9 (Docs. 75, 97.) 10 (Docs. 32, 38.) (Doc. 31.) March 19, 2008, Findings Defendant Figueroa filed a motion to Various other Defendants also filed Near the end of 2009, the United States Supreme Court issued 11 the decision in Ashcroft v. Iqbal, 129 U.S. 1937 (2009), which 12 ushered in a change of pleading standards. 13 Secret Service, 572 F.3d 962 (9th Cir. 2009). 14 case was re-screened and Plaintiff was granted leave to file a 15 third amended complaint in light of the changed pleading 16 standards. 17 multiple extensions of time, Plaintiff filed the Third Amended 18 Complaint (Doc. 141) which was screened and upon which findings 19 and recommendations (hereinafter “the Screening Findings and 20 Recommendation”) issued recommending that this action proceed 21 only against Defendants J. Klarich, K. Nyguen, D. Deering, S. Wu, 22 and A. Santa Cruz. 23 Findings and Recommendation (hereinafter “the Order Adopting”) 24 issued November 2, 2010. (Doc. 123, 129.) See Moss v. U.S. Accordingly, this After requesting and receiving (Doc. 144.) An order adopted the Screening (Doc. 148.) 25 B. 26 December 13, 2010, Plaintiff filed an ex parte notification Plaintiff’s Motion for Reconsideration 27 attaching his objections to the Screening Findings and 28 Recommendation requesting that the Clerk of the Court note his 2 1 objections in the record and on the docket, and that he be 2 forwarded a copy of the “Docket activity sheet,” Local Rules, and 3 “Judge’s Rules.” 4 shows that he timely submitted his objections for mailing; 5 however, for unknown reasons, the copy submitted December 13, 6 2010 is the first that Plaintiff’s objections were received by 7 this Court. 8 objections were not received prior to issuance of the Order 9 Adopting, they are construed as a request for reconsideration. (Doc. 152, 155.)1 Plaintiff’s proof of service Since Plaintiff’s ex parte notification and 10 Despite the passage of adequate time, Defendants have responded 11 to neither Plaintiff’s ex party notification nor his objections. 12 C. 13 Federal Rule of Civil Procedure 60(b) governs the 14 reconsideration of final orders of the district court. 15 permits a district court to relieve a party from a final order or 16 judgment on grounds of: 17 or excusable neglect; (3) fraud . . . of an adverse party, . . . 18 or (6) any other reason justifying relief from the operation of 19 the judgment.” 20 reconsideration must be made within a reasonable time, in any 21 event “not more than one year after the judgment, order, or 22 proceeding was entered or taken.” 23 Standards for Reconsideration The Rule “(1) mistake, inadvertence, surprise, Fed. R. Civ. P. 60(b). The motion for Id. Motions to reconsider are committed to the discretion of the 24 trial court. 25 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 26 1983) (en banc). Combs v. Nick Garin Trucking, 825 F.2d 437, 441 To succeed, a party must set forth facts or law 27 1 28 Though the ex parte application noted that the objections were an attachment thereto, the documents were separated and entered as two distinct documents, 152 and 155, on the CM/ECF Docket. 3 1 of a strongly convincing nature to induce the court to reverse 2 its prior decision. 3 Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part 4 and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987), 5 cert. denied, 486 U.S. 1015 (1988). 6 that “[c]lause 60(b)(6) is residual and ‘must be read as being 7 exclusive of the preceding clauses.’” 8 States, 638 F.2d 119 (9th Cir. 1981); accord 9 Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. See e.g., Kern-Tulare Water Dist. v. City of The Ninth Circuit has stated Corex Corp. v. United LaFarge Conseils et 10 1986). 11 circumstances.’” 12 Local Rule 230(j)(3) & (4) requires a party to show the “new or 13 different facts or circumstances are claimed to exist which did 14 not exist for the motion; and . . . why the facts or 15 circumstances were not shown at the time of the prior motion.” 16 Accordingly, “the clause is reserved for ‘extraordinary Id. When filing a motion for reconsideration, Plaintiff explained that, though not received and docketed 17 as such, he timely2 served his objections to the Screening 18 Findings and Recommendations. 19 reviewed prior to adoption of the Screening Findings and 20 Recommendation, they are insufficient to have caused a different 21 result. 22 show new or different facts or circumstances which did not exist 23 and had not been previously presented and considered as of the 24 time the Screening Findings and Recommendations were adopted, or However, even if received and Neither Plaintiff’s ex parte request nor his objections 25 26 27 28 2 W hen a pro se prisoner alleges that he timely complied with a procedural deadline by submitting a document to prison authorities, the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party. See Faile v. Upjohn Co., 988 F.2d 985, 989 (9th Cir. 1993). 4 1 extraordinary circumstances so as to justify the relief sought. 2 3 Plaintiff fails to present any arguments and/or authority to 4 show error in either the Screening Findings and Recommendations 5 or the adoption thereof. 6 settlement conference be scheduled, due to limited judicial 7 resources, cases are not set for settlement conference until both 8 sides indicate a willingness to participate and that such efforts 9 might be successful. As to Plaintiff’s request that a This case is no different. Further, as 10 long as Plaintiff’s claims under 42 U.S.C. § 1983 survive, 11 supplemental jurisdiction will be exercised over Plaintiff’s 12 pendent state law claims based thereon. 13 under section 1983 are dismissed, his state law claims based 14 thereon will also be dismissed. 15 disagreement with the analysis as to the sufficiency of his 16 allegations to state cognizable retaliation claims against Dr. 17 Nyguen and Dr. Wu also does not equate to extraordinary 18 circumstances. 19 reconsideration of the Order Adopting the Screening Findings and 20 Recommendations. 21 If Plaintiff’s claims Finally, Plaintiff’s Plaintiff fails to present any basis to justify In accordance with the provisions of 28 U.S.C. § 22 636(b)(1)(C) this Court has conducted a de novo review of this 23 case. 24 Adopting the Screening Findings and Recommendation is found to be 25 supported by the record and proper analysis. 26 Having carefully reviewed the entire file, the Order Plaintiff ends his request with a sentence seeking copies of 27 “a new Docket activity sheet,” the Local Rules, and “Judge’s 28 Rules.” (Doc. 155, 1:28-2:1.) Plaintiff is not entitled to 5 1 unlimited access to the resources necessary to prepare optimal 2 legal filings, see Lewis v. Casey, 518 U.S. 343, 354-55 (1996), 3 and the Court does not have sufficient resources to provide 4 copies of legal materials to parties such that this request must 5 be denied. 6 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion 7 for reconsideration, filed December 13, 2010 (Doc. 152, 155), is 8 DENIED. 9 IT IS SO ORDERED. 10 Dated: May 7, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6