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James Cato, Jr v. T. Avila

January 21, 2012

JAMES CATO, JR.,
PLAINTIFF,
v.
T. AVILA,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

(ECF Nos. 16, 25, 26)

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND GRANTING PLAINTIFF'S MOTIONS TO AMEND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff James Cato, Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed his initial Complaint on May 5, 2010, alleging violations of his Eighth Amendment right to be free from excessive force. (ECF No. 1.) The Court has screened Plaintiff's Complaint, found that it stated a cognizable claim, and ordered service. (ECF No. 11.)

Plaintiff has several motions pending before the Court:

On May 2, 2011, Plaintiff filed a letter asking that the Court correct an error in an order. (ECF No. 25.) The Court construes this request as a Motion for Reconsideration.

On May 24, 2011, Plaintiff filed a Motion to Correct the Stipulation attached to his Complaint. (ECF No. 16.)

On July 14, 2011, Plaintiff filed a Motion for Leave to File a Supplemental Complaint and a proposed supplemental complaint. (ECF Nos. 26 & 27.) Defendants have filed objections to this Motion. (ECF No. 28.)

These three Motions are now before the Court.

I. MOTION FOR RECONSIDERATION

In his Motion for Reconsideration, Plaintiff asks that the Court reconsider its Order (Order, ECF No. 12) filed in response to Plaintiff's 1) Motion to Return Adult Material Exhibits (ECF No. 3) and 2) Motion Requesting the Court to Return Items Mistakenly Forwarded to Court as Exhibit B (ECF No. 7). (Mot., ECF No. 25.)

In the Order at issue, the Court granted Plaintiff's Motions because Plaintiff's claims related to mail confiscation had been dismissed, and the material subject to the Motions was not relevant in the above-captioned action. (Order at 2.) The Court did not see any reason for retaining the material in its file. However, the Court did not return the material directly to Plaintiff because it was concerned whether prison regulations permitted Plaintiff to possess the material at issue. (Id.) The Court instead returned the material to the prison Litigation Coordinator to determine whether or not Plaintiff could keep the material. (Id. at 3.)

Plaintiff asks that the Court "correct [its] error," and order Plaintiff's material to be returned to him. (Mot. at 2.) Plaintiff would like the material returned to him because they are his legal exhibits. (Id.)

"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the . . . court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted), and "[a] party seeking reconsideration must show more than a disagreement with the Court 's decision, and recapitulation . . . " of that which ...


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