ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 17)
ORDER DENYING PLAINTIFF'S MOTION FOR JUDICIAL NOTICE AND MOTION FOR RECONSIDERATION (ECF Nos. 27, 29)
Plaintiff Bilal Ahdom ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 17, 2011, the Magistrate Judge filed a findings and recommendations herein which was served on Plaintiff and which contained notice to Plaintiff that any objection to the findings and recommendations was to be filed within thirty days. On November 8, 2011, the Court granted Plaintiff's motion for a sixty day extension of time to file objections to the findings and recommendations.
On November 16, 2011, Plaintiff filed a motion to amend the complaint. A second amended complaint was lodged on December 21, 2011. On January 3, 2012, a request for judicial notice, a corrected motion to amend and a second amended complaint were filed. On January 13, 2012, an order issued denying Plaintiff's motion to amend and disregarding the second amended complaint. Plaintiff filed an untimely objection to the findings and recommendation and motion for the court to take judicial notice on January 23, 2012. On January 31, 2012 Plaintiff filed objections to the order denying the motion to amend and striking the second amended complaint.
II. Objections to Order Denying Motion to Amend and Striking Second Amended Complaint
Plaintiff filed a motion objecting to the order denying his motion to file an amended complaint. An "opposition" to the Court's order is not a recognized response. To the extent that Plaintiff's motion can be construed as a motion for reconsideration, "[a] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original).
Plaintiff argues that the Magistrate Judge erred in finding that his motion to amend the complaint was made in bad faith and states that he only deleted all references to any treatment provided by his medical providers to lessen the number of paragraphs contained in the complaint.
In the order denying Plaintiff's motion to file an amended complaint the Magistrate Judge found that Plaintiff had deleted all references to treatment provided by his medical providers to address his complaints of pain and stated that the medical providers refused to provide treatment for his pain. While Plaintiff states that he deleted all references to treatment so he could lessen the number of paragraphs in the complaint, the specific paragraphs referenced by the Magistrate Judge are contained in both complaints. Only the language regarding the treatment provided has been changed.
For example paragraph 46 of the first amended complaint states:
On October 6th, 2008, Defendant Shittu examined Plaintiff and Plaintiff informed him about the excruciating pain in his ankle and back; his need for a lower tier cell; orthopedic mattress; effective pain meds.; and prone exemption chrono/vest. Shittu ordered crushed codeine tabs that caused pain to Plaintiff's stomach. Shittu deliberately failed to act on Plaintiff's other medical requests and needs. (Emphasis added.)
Paragraph 40 in the second amend complaint, which sets forth the same visit, states:
On October 6th, 2008, Plaintiff met and was examined by Defendant Shittu who he informed about his post-surgery back pain and severe pain in his ankle. Additionally, Plaintiff informed Shittu about his need for effective pain management, urgent medical treatment of his Achilles injury, a lower tier cell chrono, ADA prone vest, an orthopedic mattress, and permanent bed and toilet rails. Shittu deliberately failed to act, and he did so with deliberate indifference. Similarly, paragraph 58 of the first amended complaint states:
On November 10th, 2008, Plaintiff was examined by Defendant Schaefer and he informed her about his need for urgent treatment for his Achilles injury; that pain meds were not working; his need for ADA accommodations; and that he needed a lower tier cell because of his back and knee high cast and crutches. Plaintiff also informed Schaefer about his need for ADA accommodations. Schaefer increased Plaintiff's Tramadol and Gabapentin meds., and said she would schedule Plaintiff for ...