The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER RE: MOTION FOR RECONSIDERATION AND FOR LEAVE TO FILE AMENDED
Plaintiff Stephen Jerome Williams, a state inmate currently incarcerated at Calipatria State Prison, located in Calipatria, California, proceeding pro se, has submitted a motion for reconsideration pursuant to Civil Local Rule 7.1(i) and for leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a). Plaintiff requests that the Court reconsider its November 3, 2010 order granting Defendants' motion to dismiss and allow leave to amend those claims for relief previously dismissed with prejudice and without leave to amend. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion.
Civil Local Rule 7.1(i) permits motions for reconsideration and provides that a party may apply for reconsideration "[w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part...." S.D. Cal. Civ. LR 7.1(i)(1). The party seeking reconsideration must show "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." Id. Civil Local Rule 7.1(i)(2), however, only permits motions for reconsideration within "30 days of the entry of the ruling." Here, it appears that Plaintiff submitted this motion to prison officials on January 1, 2011. See attached Certificate of Service. The motion was filed on January 6, 2011. See Doc. No. 41. Thus, the motion is technically untimely. However, Plaintiff advised the Court previously regarding a prison lock down, his transfer to administrative segregation, and consequent confiscation of his legal papers, together which delayed his ability to prepare an amended complaint or otherwise respond to the Court's November 3, 2010 order. See Doc. No. 39. As such, the Court shall excuse the late filing.
However, even if the Court were to preclude the motion under the Civil Local Rules as untimely, in the alternative it could construe Plaintiff's motion as one to alter or amend a judgment under 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). Rule 60(b) provides that a motion for "relief from judgment or order" may be filed within a "reasonable time," but usually must be filed "not more than one year after the judgment, order, or proceeding was entered or taken." Fed. R. Civ.
P. 60(b). Reconsideration 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 justifies relief. Id.
a) Claim for Injunctive Relief
Plaintiff first requests that the Court reconsider the dismissal of his claim for injunctive relief. In his second amended complaint, Plaintiff requests an injunction preventing the Warden "from subjecting Calipatria State Prison inmates to its Underground Contraband Watch Regulation." The Court dismissed the claim for injunctive relief as a result of its dismissal with prejudice of Plaintiff's official capacity claim against Defendant McEwen, stating:
An alleged violation of prison regulations does not provide a basis for an independent cause of action under section 1983, and absent the promulgation of "a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation,'" Plaintiff cannot state a claim against Defendant McEwen in his official capacity, and his claim for injunctive relief is subject to dismissal.
See Court's November 3, 2010 Order, 9 (citations omitted).
Plaintiff seeks reconsideration of the Court's order, arguing that his second amended complaint satisfactorily alleged that the contraband watch policy itself amounted to cruel and unusual punishment in violation of the Eighth Amendment and the deprivation of a liberty interest under the Fourteenth Amendment. Plaintiff is correct that if a supervisor, such as a warden, implements a policy so deficient that the policy itself is a repudiation of constitutional rights, a cause of action may lie under section 1983 against the supervisor. Wesley v. Davis, 333 F.Supp.2d 888, 892. However, even if the Court were to find that Plaintiff stated a plausible claim against Defendant McEwen, ...