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West v. Marsh

September 30, 2010

MACK A. WEST, JR., #F-60029 PLAINTIFF,
v.
ROD MARSH; DEBRA SIGLER; FRED JONES; CAROLYN CHILDERS; WILLIAM BOARDNAUX; JEFFREY SMITH; JASON GARRISON; LUZ SOLIC; GREG SMITH; ANGIE JIM; DEBROTH PETTAWAY; TERESA CROW; CARLOS AVILA; KATEY HARDY; JOSEPH HEADLEY; KEN STEWART; KEN JEREGOSON; HEIDI DOLAN; LARISOLA; AND FRANK BAILEY, DEFENDANTS.



The opinion of the court was delivered by: Helen Gillmor United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (DOC. 42) AND DENYING PLAINTIFF'S REQUEST FOR AN EXTENSION OF TIME (DOC. 44)

Plaintiff Mack A. West, Jr., proceeds pro se and in forma pauperis, raising civil rights claims pursuant to 42 U.S.C. § 1983. On July 23, 2010, the Court filed an Order Adopting the Magistrate Judge's Findings And Recommendation To Dismiss Plaintiff's Third Amended Complaint. (Doc. 40.) On August 4, 2010, Plaintiff filed a Motion For Reconsideration. (Doc. 42.) On August 31, 2010, Plaintiff filed a request for an extension of time to file "unrelated claims." (Doc. 44.)

Plaintiff's motions are DENIED.

STANDARD OF REVIEW

A motion for reconsideration can be brought pursuant to Federal Rule of Civil Procedure 59(e). If the motion for reconsideration is filed within twenty-eight days*fn1 of the district court's order, then the motion is properly treated under Rule 59(e). Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1064 (9th Cir. 2005)). Under Rule 59(e), it is appropriate to alter or amend a judgment for three reasons: "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Zamani, 491 F.3d at 997 (quoting Sissoko v. Rocha, 440 F.3d 1145, 1153-1154 (9th Cir. 2006)).

ANALYSIS

A. The July 23, 2010 Order Adopting The Magistrate Judge's Findings And Recommendation

Plaintiff Mack A. West, Jr.'s Third Amended Complaint contains two separate parts. (Third Amended Complaint, (Doc. 25).) In the first part, Plaintiff alleges that while incarcerated at Solano County Justice Center Detention Facility in Fairfield, California, Defendants Rod Marsh, Debra Sigler, and Fred Jones removed Plaintiff from a life skills program, in violation of his rights under the Americans With Disabilities Act ("ADA"), Title 42 U.S.C. § 12132. Id. at pp. 3-5a. In the second part of the Third Amended Complaint, Plaintiff claims that after he filed a grievance against Defendant Carolyn Childers, the remaining named Defendants retaliated against him. Id. at pp. 6--8d.

In the Findings And Recommendation To Dismiss

The Third Amended Complaint ("Findings and Recommendation"), filed on February 22, 2010, the Magistrate Judge performed a separate analysis for the first and second parts. (Findings and Recommendation, (Doc. 27).) The Magistrate Judge recommended dismissing the first part without leave to amend, for failure to state a claim on which relief may be granted. Id. at pp. 11-12. The Magistrate Judge recommended dismissing the second part as a separate lawsuit that did not arise from the same "transaction, occurrence, or series of transactions" as the first part. Id. at pp. 12-13. On July 23, 2010, the Court adopted the Magistrate Judge's Findings and Recommendation. The Court dismissed the first part of Plaintiff's Third Amended Complaint with prejudice, for failure to state a claim, and dismissed the second part without prejudice to Plaintiff's refiling those claims as a new prisoner civil rights complaint. (Doc. 40.)

B. Plaintiff's Motion For Reconsideration

Without citing the Federal Rules of Civil Procedure or any case law, Plaintiff requests reconsideration of the Court's July 23, 2010 Order. He makes three arguments. First, he states that "PLAINTIFF['s] OBJECTIONS TO THE MAGISTRATE FINDINGS AND RECOMMENDATION WAS MOOT ONLY IF THE DISTRICT COURT JUDGE HELEN W. [Gillmor] ACCEPTED PLAINTIFF'S FOURTH AMENDED COMPLAINT." (Plaintiff's Motion For Reconsideration at p. 1, (Doc. 42).) Although it is difficult to decipher Plaintiff's meaning, his proposed Fourth Amended Complaint contains only allegations relevant to the allegations from the first part of the Third Amended Complaint relating to the Americans With Disabilities Act. (Request For Leave To File A Fourth Amended Complaint, (Doc. 39).) Second, he asserts that the Court abused its discretion by denying his request to file the proposed Fourth Amended Complaint. (Plaintiff's Motion For Reconsideration at p. 1, (Doc. 42).) Third, Plaintiff appears to argue that the Court was not permitted to issue a "strike" under 28 U.S.C. § 1915(g). (Plaintiff's Motion For Reconsideration at p. 2, (Doc. 42).)

Plaintiff filed the Motion For Reconsideration within twenty-eight days of the Court's July 23, 2010 Order. The motion is properly treated under Federal Rule of Civil Procedure 59(e). Zamani v. Carnes, 491 F.3d 990, 997 (internal citation omitted).

Under Rule 59(e), it is appropriate to alter or amend a judgment for three reasons: "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Zamani, 491 F.3d at 997 (internal citation omitted). Plaintiff has not presented any newly discovered evidence and does not argue that there has been any intervening change in ...


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