Neuendorf v. Unknown Party et al

Filing 12

ORDER denying 9 Plaintiffs "Motion to the Court", which the Court construes as being brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The Clerk of Court must not file Plaintiff's lodged Second Amended Complaint (Doc. 10). This case must remain closed. Signed by Judge Robert C Broomfield on 9/14/10.(DMT)

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Neuendorf v. Unknown Party et al Doc. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO RP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA John Calvin Neuendorf, II, Plaintiff, vs. Unknown Party, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 10-124-PHX-RCB (DKD) ORDER Pending in this closed case are Plaintiff's "Motion to the Court" (Doc. 9) and lodged Second Amended Complaint (Doc. 10). The Court will deny Plaintiff's Motion and direct the Clerk of Court not to file Plaintiff's lodged Second Amended Complaint. I. Procedural Background On January 21, 2010, Plaintiff John Calvin Neuendorf, II, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 3). On April 6, 2010, Plaintiff's First Amended Complaint (Doc. 5) (Amended Complaint) was filed in this case nunc pro tunc. By Order filed April 27, 2010 (Doc. 6), the Court granted Plaintiff's Application to Proceed In Forma Pauperis, assessed a partial filing fee of $3.06, dismissed Defendant Rivas from this action, and dismissed Counts II and III of the Amended Complaint for failure to state a claim upon which relief may be granted. Plaintiff was given 30 days from the filing date of the Order to file a Response to the Order that included either (1) the name of Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Unknown Members of the SAU or (2) an explanation of what Plaintiff had done to try to learn his or her name, a description of what discovery he would undertake to learn his or her name, and the identity of at least one person who could be served with discovery. The Clerk of Court was directed to enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff if he failed to file a Response within 30 days. When Plaintiff failed to comply with the Court's April 27, 2010 Order (Doc. 6), the Clerk of Court entered a Judgment of dismissal of this action on June 11, 2010 (Doc. 8). II. Motion to the Court On July 8, 2010, Plaintiff filed a "Motion to the Court" (Doc. 9), in which he asks for "extensions & or the re[]opening and new directives" for this and two other cases.1 In the present case, where Plaintiff submitted his Motion after entry of judgment, the only appropriate procedural devices are: (1) a motion to alter or amend judgment pursuant to Rule 59(e), Federal Rules of Civil Procedure; or (2) a motion for relief from judgment pursuant to Rule 60(b), Federal Rules of Civil Procedure. Here, Plaintiff served his Motion within the 28 days required by Rule 59(e). Accordingly, the Court will construe Plaintiff's Motion as having been brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted). In support of his Motion, Plaintiff asserts that he has "tried to compile all information needed for the Court but must ask the Court for leniency in l[ay]man terms." Plaintiff further asserts that he is "in jail with no monies and need[s] to reopen all above cases." Here, after having considered the foregoing standards, and liberally reviewing the circumstances of Plaintiff's case, the Court's previous Order filed April 27, 2010 (Doc. 6), The two other cases which Plaintiff included in his Motion were Neuendorf v. Arizona, CV 10-607-PHX-RCB (DKD), and Neuendorf v. Steinhillber, CV 10-724-PHXRCB (DKD). -2- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the record in this case, and Plaintiff's Motion, the Court declines to set aside the Judgment of dismissal entered on June 11, 2010 (Doc. 8) and reopen this case. The Judgment of dismissal was entered in this action for Plaintiff's failure to comply with the Court's April 27, 2010 Order. Plaintiff does not dispute that he failed to so comply. Accordingly, the Court will deny Plaintiff's Motion. III. Lodged Second Amended Complaint On July 19, 2010, Plaintiff lodged a Second Amended Complaint (Doc. 10) in this closed case. In light of the denial of Plaintiff's Motion (Doc. 9), the Court will direct the Clerk of Court not to file Plaintiff's lodged Second Amended Complaint. IT IS ORDERED: (1) Plaintiff's "Motion to the Court" (Doc. 9), which the Court construes as being brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, is denied. (2) The Clerk of Court must not file Plaintiff's lodged Second Amended Complaint (Doc. 10). (3) This case must remain closed. DATED this 14th day of September, 2010. -3-

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