Opinion
No. CIV S-07-1451 FCD DAD P.
October 20, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se with this civil rights action seeking relief under 42 U.S.C. § 1983. On September 30, 2008, the court granted defendants' motion to dismiss plaintiff's complaint due to his failure to exhaust administrative remedies prior to filing suit. On the same day, judgment was entered and the case was closed. Plaintiff has filed a timely request to alter or amend the judgment pursuant to Federal Rules of Civil Procedure 59(e).
"A motion for reconsideration under Rule 59(e) `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 controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
Here, plaintiff does not argue that newly discovered evidence or an intervening change of the law requires reinstatement of this action. Moreover, the court conducted a de novo review of this case on September 30, 2008. All papers and files in this action were considered at that time. In his October 8, 2008 request to alter or amend the judgment, plaintiff has not demonstrated that he can cure the defects with respect to any federal claim alleged in his complaint.
Accordingly, IT IS HEREBY ORDERED that plaintiff's October 8, 2008 request to alter or amend judgment is denied.