Fields v. Rosenthal

Filing 16

ORDER Denying Plaintiff's Motion For Reconsideration (Doc. 13 ), ORDER For Plaintiff To Either: (1) File A Second Amended Complaint, Or (2) Notify The Court Of His Willingness To Proceed Only On The Claim Found Cognizable By The Court, Thirty-Day Deadline To File Second Amended Complaint Or Notify Court Of Willingness To Proceed, signed by Magistrate Judge Gary S. Austin on 7/26/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN FIELDS,

1:10-cv-01764-GSA-PC

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ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION
(Doc. 13.)

Plaintiff,
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vs.

ORDER FOR PLAINTIFF TO EITHER:

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(1)

FILE A SECOND AMENDED
COMPLAINT, OR

(2)

NOTIFY THE COURT OF HIS
WILLINGNESS TO PROCEED ONLY
ON THE CLAIM FOUND
COGNIZABLE BY THE COURT

R. ROSENTHAL,
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Defendant.
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THIRTY-DAY DEADLINE TO FILE SECOND
AMENDED COMPLAINT OR NOTIFY
COURT OF WILLINGNESS TO PROCEED

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/
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I.

BACKGROUND

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Kevin Fields (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by civil complaint at the Kings County

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Superior Court on August 11, 2010 (Case #10-C0309). On September 23, 2010, defendant

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Rosenthal (“Defendant”) removed the case to federal court by filing a Notice of Removal of Action

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pursuant to 28 U.S.C. § 1441(b). (Doc. 1.)

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On October 7, 2010, Plaintiff filed the First Amended Complaint. (Doc. 5.) The Court

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screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and entered an order on May

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21, 2012, giving Plaintiff two options, (1) to file a Second Amended Complaint, or (2) to notify the

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Court of his willingness to proceed on the claims found cognizable by the Court. (Doc. 9.) On May

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29, 2012, Plaintiff filed written notice that he was willing to proceed on the claims found cognizable

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by the Court. (Doc. 11.) On June 20, 2012, Defendant filed a motion to dismiss the complaint for

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failure to state a claim. (Doc. 12.)

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On July 5, 2012, Plaintiff filed a motion for the Court to re-screen claim #1 of the First

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Amended Complaint. (Doc. 13.) On July 25, 2012, Defendant filed an opposition to the motion.

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(Doc. 15.) Plaintiff’s motion for reconsideration of the screening order is now before the Court.

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d

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737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must

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demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks

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and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff

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to show “what new or different facts or circumstances are claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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Plaintiff requests the Court to re-screen claim #1 in the First Amended Complaint, arguing

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that the Court erred in its screening order and misconstrued claim #1 as an access to courts claim
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instead of a retaliation claim. Plaintiff then recites allegations against Defendant, stemming from

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events occurring on January 5, 2010.

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Defendant opposes Plaintiff’s motion, “whether construed as an informal objection under

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Rule 46 or as a motion for reconsideration under Rule 60(b),” arguing that Plaintiff waived his

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objection when he consented to proceed with the litigation on the claims found cognizable by the

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Court. (Opp’n, Doc. 15 at 1:21-24.) In the event that the Court grants Plaintiff’s motion, Defendant

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requests leave to supplement his motion to dismiss, in order to address Plaintiff’s additional

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retaliation claim.

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III.

DISCUSSION

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The Court cannot now consider the new or amended allegations which Plaintiff has presented

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in his motion. L.R. 220 (an amended pleading “must be retyped and filed so that it is complete in

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itself without reference to the prior or superseded pleading”). Plaintiff has not demonstrated that the

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Court committed clear error, or presented the Court with new information of a strongly convincing

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nature, to induce the Court to reverse its prior decision. Therefore, the motion for reconsideration

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shall be denied.

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Plaintiff’s remedy, at this stage of the proceedings, is to file a Second Amended Complaint

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in which he clearly alleges his claims. “Rule 15(a) is very liberal and leave to amend ‘shall be freely

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given when justice so requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946,

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951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). Plaintiff shall be granted thirty days in which

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to either (1) file a Second Amended Complaint, or (2) notify the court in writing that he is willing

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to proceed only against defendant Rosenthal on the retaliation claim in the First Amended Complaint

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found cognizable by the Court in the screening order of May 21, 2012.

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Should plaintiff choose to amend the complaint, plaintiff must demonstrate in the amended

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complaint how the conditions complained of resulted in a deprivation of his constitutional rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff must set forth “sufficient factual matter

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. . . to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007));

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct
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falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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Plaintiff must also demonstrate that each defendant personally participated in the deprivation of his

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rights. Jones v. Williams, 297 F.3d, 930, 934 (9th Cir. 2002) (emphasis added).

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To state a claim for retaliation under the First Amendment, Plaintiff must satisfy five

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elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). First, the plaintiff must allege

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that the retaliated-against conduct is protected. The filing of an inmate grievance is protected

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conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Second, the plaintiff must claim

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the defendant took adverse action against the plaintiff. Id. at 567. The adverse action need not be

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an independent constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he

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mere threat of harm can be an adverse action . . . .” Brodheim, 584 F.3d at 1270. Third, the plaintiff

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must allege a causal connection between the adverse action and the protected conduct. Because

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direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology

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of events from which retaliation can be inferred is sufficient to survive dismissal. Pratt, 65 F.3d at

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808 (“timing can properly be considered as circumstantial evidence of retaliatory intent”); Murphy

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v. Lane, 833 F.3d 106, 108-09 (7th Cir. 1987). Fourth, the plaintiff must allege that the “official’s

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acts would chill or silence a person of ordinary firmness from future First Amendment activities.”

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Robinson, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails

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to allege a chilling effect may still state a claim if he alleges he suffered some other harm,”

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Brodheim, 584 F.3d at 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n. 11. That

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the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the

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retaliation claim at the motion to dismiss stage. Id. at 569. Fifth, the plaintiff must allege “that the

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prison authorities’ retaliatory action did not advance legitimate goals of the correctional institution

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. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A plaintiff successfully pleads this

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element by alleging, in addition to a retaliatory motive, that the defendant’s actions were arbitrary

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and capricious, id., or that they were “unnecessary to the maintenance of order in the institution,”

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Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).

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Plaintiff should note that although he has been given the opportunity to amend, it is not for

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the purposes of adding new defendants relating to issues arising after August 11, 2010. In addition,
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Plaintiff should take care to include only those claims that have been exhausted prior to the initiation

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of this suit on August 11, 2010.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. As a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an

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amended complaint is filed, the original complaint no longer serves any function in the case.

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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. The Second Amended Complaint should be clearly

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and boldly titled “Second Amended Complaint,” refer to the appropriate case number, and be an

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original signed under penalty of perjury.

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In the event that Plaintiff files a Second Amended Complaint, Defendant’s pending motion

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to dismiss, filed on June 20, 2012, shall be moot, and any further motion to dismiss must be a new

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motion complete in itself without reference to the prior motion.

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IV.

CONCLUSION

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for reconsideration, filed on July 5, 2012, is DENIED;

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Plaintiff is granted leave to amend the complaint, if he so wishes;

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3.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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Within thirty (30) days from the date of service of this order, Plaintiff shall either:

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(1)

File a Second Amended Complaint, or

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(2)

Notify the Court in writing that he does not wish to file an amended

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complaint and is instead willing to proceed only on the retaliation claim

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against defendant Rosenthal found cognizable by the court;

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Should Plaintiff choose to amend the complaint, Plaintiff shall caption the amended

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complaint “Second Amended Complaint” and refer to the case number 1:10-cv-

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01764-GSA-PC; and

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to
comply with a court order.

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IT IS SO ORDERED.

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Dated:
6i0kij

July 26, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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