United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO AMEND OR
ALTER COURT ORDER [DOC. NO. 28]
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.
August 2, 2018, Cedric Eugene Green
(“Plaintiff”), a prisoner incarcerated at
California Men's Colony located in San Luis Obispo,
California, and proceeding pro se, filed a civil complaint
pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff
claimed his constitutional rights were violated when he was
previously housed at the Richard J. Donovan Correctional
Facility (“RJD”) in 2016. (Id. at 1.)
did not prepay the civil filing fees required by 28 U.S.C.
§ 1914(a) at the time of filing; instead he filed a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (Doc. No. 5).
October 3, 2018, this Court GRANTED Plaintiff's Motion to
Proceed IFP and DISMISSED his Complaint pursuant to 28 U.S.C.
§ 1915(e)(2) & § 1915A. (Doc. No. 6.) Plaintiff
later filed a “Motion to Reconsider” the
Court's October 3, 2018 Order which was DENIED by the
Court on October 31, 2018. (Doc. Nos. 9, 10.) Plaintiff then
filed his First Amended Complaint (“FAC”). (Doc.
No. 12.) The Court DISMISSED Plaintiff's FAC, once again,
pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A.
(Doc. No. 14.) Plaintiff was permitted thirty (30) days leave
to file an amended complaint that addressed the deficiencies
of pleading identified by the Court. (Id. at 15.)
Plaintiff then filed another “Motion to
Reconsider” rather than initially complying with the
Court's Order. (Doc. No. 16.) The Court, once again,
DENIED Plaintiff's Motion and GRANTED him an extension of
time to file an amended pleading. (Doc. No. 18.)
March 4, 2019, Plaintiff filed his Second Amended Complaint
(“SAC”). (Doc. No. 19.) The Court again conducted
the required sua sponte screening and determined that
Plaintiff had failed to state a claim as to Defendants
Wilborn, Martinez, Rink, Clayton, and Beyer. (Doc. No. 20.)
Those Defendants were DISMISSED from the action.
(Id.) The Court also DISMISSED Defendants Beltran
and Rios, without prejudice, pursuant to Fed.R.Civ.P. 21.
(Id.) Finally, the Court directed the U.S. Marshal
to serve a copy of the SAC and summons upon Defendant Solis.
(Id.) Plaintiff then filed a “Motion for Leave
to Amend Second Amended Complaint” which was DENIED by
the Court on May 24, 2019. (Doc. Nos. 23, 24.)
12, 2019, Plaintiff filed a “Motion to Amend or Alter
Court Order.” (Doc. No. 28.) Defendant Solis has been
served in this action and recently received an extension of
time to respond to Plaintiff's SAC. (Doc. Nos. 29-31.)
Motion to Amend or Alter Court Order
Standard of Review
as stated above, Plaintiff brings this Motion pursuant to
Fed.R.Civ.P. 59. A motion brought under this rule is to
“alter or amend a judgment.” Fed.R.Civ.P. 59(e).
No. judgment has been entered in this matter and thus, Rule
59 is inapplicable.
the Court will liberally construe this as a motion brought
pursuant to Federal Rules of Civil Procedure 60(b), which
provides, in part, that “[o]n motion and just terms,
the court may relive a party or its legal representative from
a final judgment, order or proceeding.” Fed.R.Civ.P.
60(b). Reconsideration under Rule 60 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) other reason that justifies relief.
Application to Plaintiff's Motion
Motion, Plaintiff argues that this Court “committed
clear error and made a decision that is manifestly
unjust” when the Court dismissed portions of
Plaintiff's SAC and “refuse[d] to accept
Plaintiff's proposed Third Amended Complaint
(“TAC”).” (Doc. No. 28 at 1-2.)
Plaintiff argues that “though the SAC was sufficient,
Plaintiff proposed a TAC that offers greater details to the
pleadings.” (Id. at 3.) The Court has
conducted the required sua sponte screening of
Plaintiff's pleadings on three separate occasions.
(See Doc. Nos. 6, 14, 20.) And after each Order was
issued, Plaintiff filed a motion challenging the Order.
(See Doc. Nos. 9, 16, 28) In this latest objection,
Plaintiff does not provide any specific factual allegations
to bolster any of the claims that were dismissed but ...