Bursiel v. Hollomon

1 FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jul 08, 2020 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 EDWARD NICHOLAS BURSIEL, NO. 2:19-CV-00361-SAB 11 Plaintiff, 12 v. ORDER DENYING MOTION 13 TO ALTER OR AMEND THE 14 RICHARD HOLLOMON and CHANCI JUDGMENT 15 LOPEZ, 16 Defendants. 17 18 19 Before the Court is Plaintiff’s Motion to Alter or Amend the Judgment 20 Pursuant to Federal Rule of Civil Procedure 59(e) (“Rule 59(e)”). ECF No. 13. 21 Plaintiff, a prisoner currently housed at the Idaho Correctional Institution, is 22 proceeding pro se and in forma pauperis. Defendants have not been served. On 23 June 2, 2020, Plaintiff’s action was dismissed and judgment of dismissal was 24 entered. ECF Nos. 11, 12. 25 // 26 // 27 // 1 RULE 59(e) 2 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented 3 with newly discovered evidence, (2) the district court committed clear error or 4 made an initial decision that was manifestly unjust, or (3) there is an intervening 5 change in controlling law.’ ” Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 6 2011) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)). 7 This type of motion seeks “a substantive change of mind by the court,” Tripati v. 8 Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (quoting Miller v. Transamerican 9 Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983)), and “is an extraordinary remedy 10 which should be used sparingly.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 11 (9th Cir. 1999). Whether to grant a motion for reconsideration is within the sound 12 discretion of the Court. Navajo Nation v. Confederated Tribes and Bands of the 13 Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). 14 Plaintiff contends in his Motion, as he did in his Motion to Add Information 15 to Complaint, ECF No. 10 at 2, that he was never provided with adequate post16 deprivation remedies for his property loss. ECF No. 13 at 6. Plaintiff argues that 17 the Court did not discuss his assertion of lack of adequate post-deprivation 18 remedies in its Order Dismissing Action. Id. at 4. However, in its Order Dismissing 19 Action, the Court noted that “Plaintiff may seek redress in Washington state courts 20 for his claim of lost property. Indeed, in his motion to add information to his First 21 Amended Complaint, Plaintiff indicates that he has done so to no avail.” ECF No. 22 11 at 4 (citing ECF No. 10). The Court also stated, “[r]egardless of the outcome of 23 any state proceeding, the remedy is available to Plaintiff through that avenue.” Id. 24 In his Motion, Plaintiff also reiterates his claims from his First Amended 25 Complaint that Defendants acted together to deprive Plaintiff of his business and 26 personal property. ECF No. 13 at 4; ECF No. 8 at 7-9. Plaintiff contends that in his 27 First Amended Complaint he cured the deficiencies originally identified by the 1|| Court and he stated a constitutional claim upon which relief may be granted. ECF 2|| No. 13 at 7-8. 3 Plaintiff has failed to point to any newly discovered evidence or intervening change in controlling law. See Ybarra, 656 F.3d at 998. Moreover, while he 5|| disagrees with this Court’s application of the facts as he pleaded them to well- established Supreme Court and Ninth Circuit precedent, his Motion offers no valid 7\| basis upon which the Court might find that its June 2, 2020 Order Dismissing 8|| Action was clearly erroneous or manifestly unjust. /d. 9 Accordingly, IT IS HEREBY ORDERED: 10 Plaintiff's Motion to Alter or Amend the Judgment Pursuant to Federal Rul 11|| of Civil Procedure 59(e) (“Rule 59(e)”), ECF No. 13, is DENIED. All motions tha 12)| were pending on June 2, 2020 are DENIED as moot. 13 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide a copy to Petitioner. The file shall remain closed. The Court certifies that 15|| pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken good faith, and there is no basis upon which to issue a certificate of 17|| appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 18 DATED this 8th day of July 2020. 19 20 21 22) hl Secon 34 Stanley A. Bastian

9s United States District Judge

26 27 ORDER DENYING MOTION TO ALTER OR AMEND THE JUDGMENT - 4