UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 17, 2008
CHARLES T. DAVIS, PLAINTIFF,
PINEDA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER DENYING MOTION FOR RECONSIDERATION, WITH PREJUDICE (Doc. 13)
Plaintiff Charles T. Davis ("Plaintiff") is a state prisoner who was proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was dismissed by order filed September 8, 2008, based on Plaintiff's failure to exhaust prior to filing suit. 42 U.S.C. § 1997e(a). On September 12, 2008, Plaintiff filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(a), which allows for relief from judgment due to clerical mistakes, oversights, and omissions.
Plaintiff contends that on August 28, 2008, he mailed an amended complaint as a matter of right, Fed. R. Civ. P. 15(a), and the amended complaint must be deemed filed on that date, Caldwell v. Amend, 30 F.3d 1199, 1202 (9th Cir. 1994); Houston v. Lack, 487 U.S. 266, 270 (1988). Plaintiff seeks to have the dismissal of this action set aside on the ground that his amended complaint superceded the original complaint, which was the subject of the Magistrate Judge's Findings and Recommendations that led to dismissal of this action.
To the extent that the prison mailbox rule is applicable in this circumstance, the filing at issue is entitled "Amended Application for a TRO, Preliminary Injunction, and Permanent Injunction to Prevent Immediate Imminent Harm," and in the filing, Plaintiff requests a temporary restraining order and preliminary injunction "under the Doctrine of Imminent Harm! until such time as as [sic] the court rules on a permanent injunction." (Doc. 12.) The filing is not an amended complaint and was properly treated as a motion. That motion was resolved by an order issued by the undersigned on September 15, 2008.
Plaintiff's motion for reconsideration, filed September 12, 2008, is HEREBY DENIED, with prejudice.
IT IS SO ORDERED.
© 1992-2008 VersusLaw Inc.