Rodrigo Rodriguez-Mendez v. Kerney, et al.

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODRIGO RODRIGUEZ-MENDEZ, No. 2:24-CV-0678-DC-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 KERNEY, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Pending before the Court are the following 19 motions: (1) Plaintiff’s motion for reconsideration of the District Judge’s order dismissing 20 Defendant Ellred with prejudice, ECF No. 21; and (2) Plaintiff’s motion for reconsideration of the 21 undersigned’s findings and recommendations that this action be dismissed for lack of prosecution, 22 see ECF No. 22. The Court addresses Plaintiff’s first motion here. Plaintiff’s second motion has 23 been addressed by separate order. 24 On June 13, 2025, the Court determined that service of Plaintiff’s first amended 25 complaint on Defendants Birtwell, Fox, Kerney, Peterson, Waurmbaug was appropriate and 26 directed Plaintiff to submit documents necessary for service of process by the United States 27 Marshal within 30 days. See ECF No. 18. Concurrently, the Court issued findings and 28 recommendations that Plaintiff’s claims against Defendant Ellred be dismissed with prejudice. 1 See ECF No. 17. Plaintiff did not file objections to the findings and recommendations, which 2 were adopted in full by the District Judge on August 12, 2025. See ECF No. 19. Plaintiff now 3 seeks reconsideration of the dismissal of Defendant Ellred. 4 The Court may grant reconsideration under Federal Rules of Civil Procedure 5 59(e) and 60. Generally, a motion for reconsideration of a final judgment is appropriately 6 brought under Federal Rule of Civil Procedure 59(e). See Backlund v. Barnhart, 778 F.2d 7 1386, 1388 (9th Cir. 1985) (discussing reconsideration of summary judgment); see also 8 Schroeder v. McDonald, 55 F.3d 454, 458-59 (9th Cir. 1995). The motion must be filed no 9 later than twenty-eight (28) days after entry of the judgment. See Fed. R. Civ. P. 59(e). 10 Under Rule 59(e), three grounds may justify reconsideration: (1) an intervening change in 11 controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or 12 prevent manifest injustice. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 13 656, 665 (E.D. Cal. 1986), rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. 14 denied, 486 U.S. 1015 (1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 15 665 (9th Cir. 1999); accord School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 16 1993). 17 Under Rule 60(a), the Court may grant reconsideration of final judgments and any 18 order based on clerical mistakes. Under Rule 60(b), the Court may grant reconsideration of a 19 final judgment and any order based on: (1) mistake, inadvertence, surprise, or excusable neglect; 20 (2) newly discovered evidence which, with reasonable diligence, could not have been discovered 21 within ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an 22 opposing party. See Fed. R. Civ. P. 60(b)(1)-(3). A motion for reconsideration on any of these 23 grounds must be brought within one year of entry of judgment or the order being challenged. See 24 Fed. R. Civ. P. 60(c)(1). Under Rule 60(b), the Court may also grant reconsideration if: (1) the 25 judgment is void; (2) the judgement has been satisfied, released, or discharged, an earlier 26 judgment has been reversed or vacated, or applying the judgment prospectively is no longer 27 equitable; and (3) any other reason that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6). A 28 motion for reconsideration on any of these grounds must be brought “within a reasonable time.” 1 || Fed. R. Civ. P. 60(c)(1). 2 In his motion for reconsideration, Plaintiff does not cite any specific rule as a basis 3 | for relief from the District Judge’s August 12, 2025, order dismissing Defendant Ellred for failure 4 || to state a claim against whom relief can be granted. Instead, Plaintiff reasserts the factual 5 || allegations in the first amended complaint which the Court found insufficient to state a claim. 6 || Having considered all the various bases for reconsideration under Rules 59 and 60, the Court 7 || finds no basis to reconsider dismissal of Defendant Ellred. 8 Based on the foregoing, the undersigned recommends that Plaintiff's motion for 9 | reconsideration, ECF No. 21, be denied. 10 These findings and recommendations are submitted to the United States District 11 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 12 | after being served with these findings and recommendations, any party may file written objections 13 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 14 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 15 Yist, 951 F.2d 1153 (9th Cir. 1991). 16 17 || Dated: February 9, 2026 = S Co 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28