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Joseph A. Sherman v. Yolo County District Attorney Jeff Reisig; Former Yolo County District

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 10, 2011

JOSEPH A. SHERMAN, PLAINTIFF,
v.
YOLO COUNTY DISTRICT ATTORNEY JEFF REISIG; FORMER YOLO COUNTY DISTRICT ATTORNEY DAVE HENDERSON; DEPUTY D.A. ALVINA TZANG; AND YOLO COUNTY TRANSPORTATION DISTRICT DIRECTOR TERRY BASSETT, DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is proceeding without counsel, filed his complaint and application to proceed in forma pauperis on November 1, 2010. (Dkt. Nos. 1, 2.) On December 14, 2010, the undersigned granted plaintiff's application to proceed in forma pauperis, but dismissed plaintiff's complaint with leave to file a first amended complaint. (Dkt. No. 3.) On December 23, 2010, plaintiff filed objections to the court's December 14th order (Dkt. No. 4), which the undersigned construes as a motion for reconsideration.

Plaintiff seeks reconsideration of the court's order dismissing claims IV through XXXII of plaintiff's complaint, which the undersigned concluded were duplicative of claims raised and resolved in a prior action filed in this court against the same defendants named here. Plaintiff also seeks reconsideration of the court's order to the extent that it dismissed plaintiff's three claims that are not duplicative.

Motions to reconsider are directed to the sound discretion of the court. See, e.g., Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981). Moreover, Local Rule 230(j) requires that a party seeking reconsideration of the court's order must brief the "new or different facts or circumstances [that are] claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

Plaintiff has failed to demonstrate any new or different facts or circumstances which did not exist or were not shown when the court dismissed plaintiff's claims. If plaintiff wishes to re-plead his duplicative claim in a first amended complaint, he may do so, and the court will again screen those claims pursuant to 28 U.S.C. § 1915(e). Should the court recommend the dismissal of those claims with prejudice, plaintiff will be provided with an opportunity to file timely objections to such a recommendation, which would be reviewed by the district judge assigned to this case. If plaintiff wishes to cure the deficiencies identified by the court with respect to his new claims, plaintiff should do so in a first amended complaint, rather than in a motion for reconsideration. Plaintiff's motion is, therefore, is denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's objections filed December 23, 2010, are overruled.

2. Plaintiff may, within 30 days from the date of this order, file an amended complaint in accordance with the court's December 14, 2010 order. Failure to do so may result in dismissal of this action.

IT IS SO ORDERED.

20110110

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