(HC) Montgomery v. Lozano

Opinion

TERRY LEE MONTGOMERY, No. 2:20-cv-0515 JAM AC P Petitioner, v. ORDER Respondent. By order filed January 28, 2021, this action was dismissed, ECF No. 20, and judgment was entered the same day, ECF No. 21. On February 6, 2021, petitioner filed what appears to be a motion for reconsideration.1 ECF No. 22. 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 petitioner’s 1 Since petitioner 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). 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). The motion for reconsideration does not present any new or different facts or circumstances. ECF No. 22. Petitioner has therefore failed to demonstrate that reconsideration is warranted in this case. Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for reconsideration, ECF No. 22, is denied. DATED: March 1, 2021 /s/ John A. Mendez THE HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE