UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 24, 2010
HUBERT DYMITR HARASZEWSKI CDCR #AC-2622, PLAINTIFF,
LISA BRANNAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND GRANTING EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT [Doc. No. 12]
On March 12, 2010, Plaintiff, Hubert Dymitr Haraszewski, an inmate currently incarcerated at Kern Valley State Prison and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. On April 20, 2010, the Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") and dismissed Plaintiff's Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Apr. 20, 2010 Order at 5-6. Plaintiff was granted leave to file a First Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id.
Plaintiff then requested, and received, two extensions of time to file his First Amended Complaint which was due to be filed no later than August, 9, 2010. See June 28, 2010 Order at 3. However, instead of filing a First Amended Complaint, Plaintiff has filed a "Motion for Reconsideration" [Doc. No. 12].
I. Plaintiff's Motion for Reconsideration
A. Standard of Review
The Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration.*fn1 However, a motion for reconsideration may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). Under Rule 60, a motion for "relief from a final judgment, order or proceeding" may be filed within a "reasonable time," but usually must be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c). Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b).
In Plaintiff's original Complaint, he alleged, in part, that his constitutional rights were violated when Defendants instigated a search of his cell while he was housed as a pre-trial detainee in the Vista Detention Facility. See Compl. at 3-5. Plaintiff then refers to a Court hearing related to his criminal proceedings in which the validity of this search, and the material seized as a result, was discussed. Id. at 4.
Based on the facts alleged, it appears that Plaintiff is challenging the validity of his criminal conviction that was based, in part, on these alleged "illegal" searches. Thus, The Court found that his claims for monetary damages based on his Fourth Amendment search and seizure claims were not yet cognizable pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). See Apr. 20, 2010 Order at 4. In his Motion for Reconsideration, Plaintiff claims that the search does not implicate the invalidity of his conviction because the "search turned up no evidence that was directly used in my prosecution." See Pl.'s Mot. at 2. This is not clear from Plaintiff's Complaint and if he chooses to file an Amended Complaint, he must be sufficiently clear that the alleged constitutional rights that were violated by the search have nothing to do with his criminal trial or conviction. If the search is related to his criminal conviction, as the Court stated in its previous Order, he must be able to show that his "criminal charges have been dismissed or the conviction overturned." See Apr. 20, 2010 Order at 4 (citing Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000).
In addition, Plaintiff acknowledges the other deficiencies of pleading identified by the Court, along with indicating that he wishes to add additional causes of action. If Plaintiff wishes to proceed in this action, he must simply file an Amended Complaint in compliance with the Court's April 20, 2010 Order.
Accordingly, the Court finds that Plaintiff has provided no newly discovered evidence, has failed to show clear error or that the Court rendered a manifestly unjust decision, and has further failed to identify any intervening changes in controlling law that would demand reconsideration of the Court's April 20, 2010 Order.
II. Conclusion and Order
In light of the foregoing, the Court hereby DENIES Plaintiff's Motion for Reconsideration [Doc. No. 12] of the Court's April 20, Order. Plaintiff is granted a thirty (30) day extension of time in which to file a First Amended Complaint that complies with the April 20, 2010 Order.
IT IS SO ORDERED.