Lamon v. Adams et al
Filing
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ORDER OVERRULING Objections and DENYING Motion for Reconsideration 116 ; THIRTY-DAY DEADLINE, signed by District Judge Lawrence J. O'Neill on 5/23/11: Plaintiff shall either file a first amended complaint OR Notify the Court he does not wish to file a first amended complaint; If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order. (Attachments: # 1 Complaint (blank form))(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BARRY LOUIS LAMON,
CASE NO. 1:09-cv-00205-LJO-SMS PC
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Plaintiff,
ORDER OVERRULING OBJECTIONS
AND DENYING MOTION
FOR RECONSIDERATION
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v.
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ADAMS, et al.,
(Doc. 116)
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Defendants.
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THIRTY DAY DEADLINE
/
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Plaintiff, Barry Louis Lamon (hereinafter “Plaintiff”), a state prisoner proceeding pro se
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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 2,
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2009. On May 19, 2011, Plaintiff filed objections to and request for reconsideration of the
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Magistrate Judge’s order re-screening the Complaint and ordering Plaintiff to file an amended
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complaint or notify if he elected to proceed only on the claims found cognizable therein. (Doc.
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116.)
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The Federal Magistrates Act1 provides two separate standards for review of Magistrate
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Judge orders by a District Judge. On nondispositive matters, a Magistrate Judge’s order is
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reviewed to ascertain whether it is “clearly erroneous or contrary to law.” 28 U.S.C. §
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636(b)(1)(A); Fed. R. Civ. P. 72(a); see Doe v. Kamehameha Schools/Bernice Pauahi Bishop
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Estate, 596 F.3d 1036, n. 4 (9th Cir. 2010) (ref. Maisonville v. F2 America, Inc., 902 F.2d 746,
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747-48 (9th Cir. 1990)); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). “The
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The Federal Magistrates Act was codified at 28 U.S.C. §§ 604, 631-639 and 18 U.S.C. §§ 3060, 34013401 and was implemented by Fed. R. Civ. P. 72-75.
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district court reviews ‘the magistrate’s order for clear error.’” Grimes v. City and County of San
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Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (quoting Maisonville, 902 F.2d at 748). “Pretrial
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orders of a magistrate under 636(b)(1)(A) are reviewable under the ‘clearly erroneous and
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contrary to law’ standard; they are not subject to de novo determination. . . .” Id. (quoting
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Merritt v. International Broth. Of Boilermakers, 649 F.2d 1013, 1017 (5th Cir. 1981). A District
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Court’s denial of reconsideration of a Magistrate Judge’s nondispositive order is reviewed under
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that same standard. Osband v. Wooford, 290 F.3d 1036, 1041 (9th Cir. 2002) (citing Brown v.
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Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir. 1985). The decision as to whether a
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Magistrate’s decision was clearly erroneous or contrary to law is “well within the discretion of
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the district court.” Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 799 (9th Cir. 2001)
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(citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989)). Further, “[t]he
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reviewing court may not simply substitute its judgment for that of the deciding court.” Grimes,
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951 F.2d at 241 (citing United States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir.1988)).
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Plaintiff has not shown that the Magistrate Judge’s Order Requiring Plaintiff Either to
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File Amended Complaint or to Notify Court of Willingness to Proceed Only on Claims Found to
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Be Cognizable after screening the complaint in light of the changed pleading standards as
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delineated in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009) was clearly erroneous or
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contrary to law. Plaintiff’s mere disagreement with the Court’s ruling, which is all that is shown
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in the instant motion, is not grounds for reconsideration.
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As stated in a recent order from this Court overruling Plaintiff’s objections and denying
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reconsideration of the Order Following Status Conference, orders such as the Magistrate Judge’s
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order re-screening the Complaint fall well within the Court’s inherent powers to manage its
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docket and to most efficiently utilize limited resources. The Court is required to screen
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complaints brought by prisoners seeking relief against a governmental entity or officer or
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employee of a governmental entity, 28 U.S.C. § 1915A(a), and must dismiss a complaint or
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portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail
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to state a claim upon which relief may be granted, or that seek monetary relief from a defendant
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who is immune from such relief, 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee,
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or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the
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court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added). Accordingly, screening and re-
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screening that may result in dismissal of claims and/or defendants can be done at any time and
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should be done when clarifications in pleading standards are rendered by higher courts which
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narrow and/or clarify claims raised in any pending action. It is merely coincidence that this
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action has not previously been reviewed in light of the changed pleading standards as delineated
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in Iqbal, 129 S.Ct. 1937; see Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). It
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matters not that prior screening of this action was conducted under more lenient standards.
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When new precedent is enacted by higher courts, it does not apply solely to cases that are
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subsequently filed; rather it is to apply to all pending cases unless specified to the contrary.
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To the extent that the document Plaintiff filed May 19, 2011 objects to the Order
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Requiring Plaintiff Either to File Amended Complaint or to Notify Court of Willingness to
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Proceed Only on Claims Found to Be Cognizable, it is HEREBY OVERRULED; and to the
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extent that the document Plaintiff filed May 19, 2011 seeks reconsideration of the Order
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Requiring Plaintiff Either to File Amended Complaint or to Notify Court of Willingness to
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Proceed Only on Claims Found to Be Cognizable, it is HEREBY DENIED.
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Further, it is HEREBY ORDERED that:
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Within thirty (30) days from the date of service of this order, Plaintiff
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must either:
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a.
File a first amended complaint curing the deficiencies identified by
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the Court in the order re-screening the Complaint that issued on May 10,
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2011 (Doc. 111), or
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b.
Notify the Court in writing that he does not wish to file a first
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amended complaint and wishes to proceed only against Defendants
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Baer, Valdez, Buenos, Lee, Ponce, and Purvis for use of excessive
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force, deliberate indifference to a threat to Plaintiff’s safety, and
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retaliation on the claims found cognizable in the order re-screening the
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Complaint that issued on May 10, 2011 (Doc. 111); and
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2.
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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to obey a court order.
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IT IS SO ORDERED.
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Dated:
b9ed48
May 23, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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