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Kenneth A. Smith v. D.V.I. Receptional Center Processing Staff

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


April 29, 2011

KENNETH A. SMITH, PLAINTIFF,
v.
D.V.I. RECEPTIONAL CENTER PROCESSING STAFF DEFENDANT.

ORDER

On January 4, 2011, the court dismissed plaintiff's complaint, but gave plaintiff leave to amend his complaint within 30 days. The court explained:

The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim. To begin with, the complaint fails to provide the names of any defendants. The court cannot serve a complaint without the name of at least one defendant. Moreover, the nature of plaintiff's allegations is unclear. Plaintiff appears to allege that a counselor at Deuel Vocational Institute failed to properly read his file and gave him an incorrect placement score, and that administrators refused to process his 602 regarding his placement. However, plaintiff fails to explain why his placement was improper and how the counselor violated his constitutional rights, and the exhibits that plaintiff attaches to his complaint show that a 602 was processed and denied. Thus, to proceed plaintiff must file an amended complaint.

The court warned plaintiff that failure to file an amended complaint would result in the case's dismissal. Plaintiff did not file an amended complaint within the time given. On March 15, 2011, the court dismissed this action for failure to state a claim. Judgment was entered accordingly.

On April 21, 2011, plaintiff filed a letter stating that a counselor at Deuel Vocational Institute erroneously classified him as a level two inmate when he is actually a level four inmate, and that although plaintiff filed a grievance, the grievance was falsely considered untimely filed. This letter rehashes some of the allegations in plaintiff's complaint, but does not cure the defects explained in the court's previous order.

Under Fed. R. Civ. P. 60(b), the court may relieve a party from a final judgment for certain enumerated reasons. Here, plaintiff has not explained why he did not comply with the court's order to file an amended complaint within the time given. In the absence of a proper reason for doing so, e.g., mistake, inadvertence, surprise or excusable neglect, the court cannot relieve plaintiff from the final judgment in this case.

The court notes that it will issue no response to future filings by plaintiff in this action not authorized by the Federal Rules of Civil Procedure or Federal Rules of Appellate Procedure.

So ordered.

20110429

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