1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AKIVA AVIKAIDA ISRAEL, No. 2:21-cv-01267-DAD-KJN (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 RUBY CARTER, et al., (Doc. No. 112) 15 Defendants. 16 17 Plaintiff Akiva Avikaida Israel is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action brought pursuant to

. This matter was referred to a 19 United States Magistrate Judge pursuant to

(b)(1)(B) and Local Rule 302. 20 On March 6, 2024, the undersigned issued an order adopting the assigned magistrate 21 judge’s findings and recommendations and denying plaintiff’s motion for reconsideration, 22 granting defendant Ruby Carter’s motion for summary judgment, and dismissing this action. 23 (Doc. No. 109.) That same day, judgment was entered. (Doc. No. 110.) On March 18, 2024, 24 plaintiff filed the pending motion, styled as a motion to amend the judgment, which the court 25 construes as a motion for reconsideration of the court’s March 6, 2024 order. (Doc. No. 112.) In 26 that motion plaintiff contends that the declaration of Dr. B. Trammell submitted in support of 27 defendant Carter’s motion for summary judgment, in which the doctor stated that “Mirtazapine is 28 not indicated for the treatment of schizophrenia,” (Doc. No. 77-6 at ¶ 4), “contained a false 1 representation of material fact,” which the court also relied upon in ruling in favor of defendant 2 Carter on summary judgment. (Doc. No. 112 at 2). 3 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 4 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 5 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 6 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 7 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 8 Fed. R. Civ. P. 60(b). “A motion for reconsideration should not be granted, absent highly unusual 9 circumstances, unless the district court is presented with newly discovered evidence, committed 10 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 11 raise arguments or present evidence for the first time when they could reasonably have been 12 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 14 original). 15 Here, plaintiff has failed to establish any basis for reconsideration under Rule 60(b). 16 Plaintiff’s argument that Dr. Trammell made a “false representation of material fact” in the 17 declaration submitted in support of defendant’s motion for summary judgment (Doc. No. 112 at 18 2), may be construed as an assertion by plaintiff of “fraud by the adverse party.” However, “[i]n 19 determining whether fraud constitutes fraud on the court, the relevant inquiry is not whether 20 fraudulent conduct prejudiced the opposing party, but whether it harmed the integrity of the 21 judicial process.” United States v. Sierra Pac. Indus., Inc.,

(9th Cir. 2017) 22 (citations and quotation marks omitted); see also Martin v. Muniz, No. 17-cv-01690-BLF-PR, 23

, at *2. (N.D. Cal. May 25, 2021). There must be an intentional, material 24 misrepresentation that goes to the case’s central issue and affects the case’s outcome. See Sierra 25 Pac. Indus.,

; Martin,

, at *2. 26 While plaintiff submits articles suggesting Mirtazapine’s potential efficacy for treating 27 schizophrenia (id. at 5–25), at issue on summary judgment was whether there was evidence 28 presented to the court demonstrating that plaintiff was prescribed Mirtazapine for schizophrenia, 1 | rather than for anxiety alone, at the time of the incident in question, i.e. August 18, 2020. 2 | Ultimately, the court concluded that plaintiff had failed to present any evidence on summary 3 || judgment that she was prescribed Mirtazapine for schizophrenia on or before the incident date of 4 | August 18, 2020. (Doc. Nos. 104 at 8, 109.) 5 Therefore, the representation in Dr. Trammell’s declaration which plaintiff alleges is false 6 | (that “Mirtazapine is not indicated for the treatment of schizophrenia”) played no role in the 7 | court’s determination that defendant Carter was entitled to summary judgment based on the 8 || evidence presented to the court. Consequently, the court is not persuaded that Dr. Trammell’s 9 | declaration constitutes “fraud” that harmed the integrity of the judicial process. See Sierra Pac. 10 | Indus.,

. Accordingly, the court will deny plaintiff's motion for reconsideration 11 | of the court’s March 6, 2024 order. 12 Accordingly, 13 1. Plaintiffs motion for reconsideration (Doc. No. 112) is denied; and 14 2. This case shall remain closed; and 15 3. No further filings will be entertained in this closed case. 16 IT IS SO ORDERED. 'T | Dated: _-Mareh 21, 2024 □□□ A. 2, ye 18 DALE A. DROZD 19 UNITED STATES DISTRICT JUDGE

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