Opinion
No. 2:19-cv-2112 KJM AC P
05-11-2020
MICHAEL BALZARINI, Plaintiff, v. JOE A. LIZARRAGA, et al., Defendants.
ORDER
By order filed April 20, 2020, this action was dismissed, ECF No. 10, and judgment was entered the same day, ECF No. 11. On April 27, 2020, plaintiff filed a motion for reconsideration. ECF No. 12.
Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). --------
A motion for reconsideration or relief from a judgment is appropriately brought under either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). The motion "is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) if it is filed [within the time provided by that Rule]. Otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order." Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (citations omitted). Since plaintiff's motion for reconsideration was filed within twenty-eight days of the entry of judgment, the motion is considered under Rule 59(e).
"Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). Further, Local Rule 230(j) requires that a motion for reconsideration state "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and . . . why the facts or circumstances were not shown at the time of the prior motion." L.R. 230(j)(3)-(4).
Plaintiff's motion for reconsideration argues that due to the extended quarantine in response to COVID-19, he has no access to the law library or legal materials. ECF No. 12 at 1. He further states that he "would like to object to the magistrate and the judge[']s order" and "ask[s] for reconsideration and to send proper forms to respond an extension of time do [sic] to quarantine, and until it[']s lifted." Id. at 2. He further states that his civil rights action should have been treated as a habeas petition. Id.
The initial findings and recommendations that recommended denial of leave to proceed in forma pauperis were filed on December 9, 2019. ECF No. 7. Plaintiff did not file any objections and the findings and recommendations were adopted on January 15, 2020, at which time he was given thirty days to pay the filing fee. ECF No. 8. After more than thirty days passed without payment of the filing fee or any other response from plaintiff, findings and recommendations recommending dismissal of the action were filed on March 2, 2020, and plaintiff was given fourteen days to object. ECF No. 9. Plaintiff again failed to file any objections and findings and recommendations were adopted the case was dismissed on April 20, 2020. ECF No. 10. The motion for reconsideration fails to identify when the conditions at issue began. However, given the timeline of this case, as set forth above, it appears that the current public health crisis had little, if any effect on his ability to file timely objections or otherwise participate in this case. Moreover, plaintiff's contention that his complaint should have been treated as a habeas petition is without merit, since the allegations did not implicate the fact or length of his incarceration. Plaintiff has therefore failed to demonstrate that reconsideration is warranted in this case.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration, ECF No. 12, is denied. DATED: May 11, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE