Opinion
No. 2:13-cv-0544 CKD P (TEMP)
11-10-2015
TERRANCE VICKERS, Plaintiff, v. WARDEN RICK HILL et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se. On October 14, 2015, then-Magistrate Judge Dale A. Drozd dismissed this action due to plaintiff's failure to state a cognizable claim for relief. On the same day, the court entered judgment and closed the case. Pending before the court is plaintiff's motion for reconsideration.
Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636. (Doc. No. 4) --------
"[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." Kona Enterprises v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Using a motion for reconsideration to reargue the points the court rejected in the original order is improper. See American Ironworks & Erectors v. North American Construction Corporation, 248 F.3d 892, 899 (9th Cir. 2001). A party cannot have relief merely because he or she is unhappy with the judgment. See Khan v. Fasano, 194 F. Supp. 2d 1134, 1136 (S.D. Cal. 2001).
In this case, then-Magistrate Judge Drozd screened plaintiff's second amended complaint and found that he failed to state a cognizable claim for relief because (1) a prisoner has no constitutional right to be free from a false prison disciplinary report in and of itself; (2) plaintiff had not alleged any factual basis for his retaliation claim as the court had previously told him was required; (3) plaintiff has no protected liberty or property interest in prison employment or the other privileges he alleges he lost as a result of defendants' alleged conduct; and (4) to the extent plaintiff claimed that defendants unfairly denied him the right to appeal the issuance of the rules violation report against him when he wanted to do so, he has no constitutional right to a specific grievance procedure. (Doc. No. 9)
Plaintiff's motion for reconsideration is difficult to decipher. He appears to take issue with the court's decision to dismiss this action without granting him further leave to amend. As an initial matter, this court had already granted plaintiff two opportunities to cure the defects of his complaint, and he failed to do so. See Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (there is no need to prolong the litigation by permitting further amendment where the "basic flaw" in the underlying facts as alleged cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) ("Because any amendment would be futile, there was no need to prolong the litigation by permitting further amendment."). Moreover, plaintiff has not explained in his motion for reconsideration how he would cure the defects of his complaint even if the court had granted him yet another opportunity to amend his complaint. Although plaintiff clearly disagrees with the court's decision to dismiss his case for failure to state a claim, plaintiff has not demonstrated that the court committed clear error or that he is otherwise entitled to reconsideration of the court's screening order.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration (Doc. No. 13) is denied. Dated: November 10, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
9
vick0544.motr