IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 29, 2012
RONALD FOSTER, PLAINTIFF,
P. STATTI, ET. AL.,
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and informa pauperis. He seeks relief pursuant to 42 U.S.C. § 1983. Presently pending is plaintiff's motion for summary judgment (Doc. 35) filed on February 27, 2012, and plaintiff's motion to amend the complaint, filed on May 8, 2012, (Doc. 40) with a proposed third amended complaint. Discovery commenced on January 11, 2012, and ended on May 4, 2012, and pretrial motions are not due until July 27, 2012.
This action continues on the second amended complaint where plaintiff alleges that as a result of several different Rule Violation Reports he received dispositions resulting in a total of approximately 10 months loss of yard time. Plaintiff stated the various RVRs were for refusing to accept a cell mate. Plaintiff stated that the loss of so much yard time greatly affected his health. In his various complaints and in the instant motion for summary judgment, as part of plaintiff's undisputed facts, he alleged that he lost 23 pounds which the court believed to be a potentially serious medical harm. Original Complaint, Doc. 1, at 5; First Amended Complaint, Doc. 8 at 10; Operative Second Amended Complaint, Doc. 13 at 12; Motion for Summary Judgment at 18.
However, in the motion to amend, plaintiff states that he repeatedly made a mistake in his filings and he wishes to amend the part of the action related to him losing 23 pounds. Plaintiff now states that he in fact gained 36 pounds. Doc. 40 at 2; Doc. 41 at 11. This is not a minor detail that was overlooked, or one on which a reasonable mistake could have been made, or even an obscure legal concept, rather plaintiff, after discovery and filing his own motion for summary judgment now wishes to amend material facts regarding his injury to the complete opposite then what he first stated.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to amend (Doc. 40) is denied.
IT IS HEREBY RECOMMENDED that plaintiff's motion for summary judgment (Doc. 35) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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