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Green v. Solis

United States District Court, S.D. California

July 5, 2019

CEDRIC EUGENE GREEN, CDCR #F-38011 Plaintiff,
v.
R. SOLIS; J. WILBORN; J. MARTINEZ; S. RINK; J. CLAYTON; DR. S. BEYER, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO AMEND OR ALTER COURT ORDER [DOC. NO. 28]

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.

         I. Procedural History

         On 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.)

         Plaintiff 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).

         On 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.)

         On 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.)

         On June 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.)

         II. Motion to Amend or Alter Court Order

         A. Standard of Review

         First, 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.

         However, 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. Id.

         B. Application to Plaintiff's Motion

         In his 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.)

         Specifically, 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 ...


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