Lamon v. Amrheign et al

Filing 32

ORDER Denying 29 Motion for Reconsideration of Magistrate Judge's Order; ORDER for Plaintiff to Comply with Magistrate Judge's 28 Order of August 12, 2014 within Thirty Days, signed by District Judge Anthony W. Ishii on 10/29/14. Amended Complaint Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY LOUIS LAMON,

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Plaintiff,

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vs.

1:12-cv-00296-AWI-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION OF MAGISTRATE
JUDGE’S ORDER
(Doc. 29.)

B. AMRHEIGN, et al.,

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Defendants.

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ORDER FOR PLAINTIFF TO COMPLY
WITH MAGISTRATE JUDGE’S ORDER
OF AUGUST 12, 2014 WITHIN THIRTY
DAYS

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I.

BACKGROUND

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Barry Lamon (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing

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this action on February 28, 2012. (Doc. 1.) The court screened the Complaint pursuant to 28

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U.S.C. § 1915A and issued an order on December 7, 2012, dismissing the Complaint for failure

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to state a claim, with leave to amend. (Doc. 11.) On February 13, 2014, Plaintiff filed the First

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Amended Complaint. (Doc. 27.)

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The court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and

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issued an order on August 12, 2014, dismissing the First Amended Complaint for failure to

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state a claim, with leave to amend. (Doc. 28.) Plaintiff was granted thirty days in which to file

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the Second Amended Complaint. (Id.)
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On August 27, 2014, Plaintiff filed a motion for reconsideration by the District Judge of

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the Magistrate Judge’s screening order of August 12, 2014. (Doc. 29.)

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II.

MOTION FOR RECONSIDERATION BY DISTRICT JUDGE

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A.

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Local Rule 303 provides that "[a] party seeking reconsideration of the Magistrate

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Judge's ruling shall file a request for reconsideration by a Judge . . . specifically designat[ing]

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the ruling, or party thereof, objected to and the basis for that objection. This request shall be

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captioned 'Request for Reconsideration by the District Court of Magistrate Judge's Ruling.'"

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Local Rule 303(c). "The standard that the assigned Judge shall use in all such requests is the

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'clearly erroneous or contrary to law' standard set forth in 28 U.S.C. ' 636(b)(1)(A)." Local

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Rule 303(f).

Legal Standard

Plaintiff’s Motion

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B.

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Plaintiff disagrees with the Magistrate Judge’s assessment that the First Amended
Plaintiff claims that the court’s first

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Complaint fails to state any claims under § 1983.

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screening order, issued on December 7, 2012, did not sufficiently explain the deficiencies of

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the initial Complaint and merely stated that his allegations were vague and too generalized,

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instructing him to be more specific about what each defendant did to violate his rights.

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Plaintiff argues that because the court did not address the questions of material law in the first

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screening order, the second screening order should be reconsidered. Plaintiff asserts that he

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followed the instructions in the court’s December 7, 2012 order, and therefore all of his claims

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in the First Amended Complaint should not have been dismissed. Plaintiff argues that the

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Magistrate Judge mischaracterized some of his allegations and applied screening standards that

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conflict with Ninth Circuit case law.

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C.

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The Court has reviewed the Magistrate Judge’s screening order of August 12, 2014, and

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does not find it to be clearly erroneous or contrary to law. Therefore, Plaintiff’s motion for

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reconsideration shall be denied.

Discussion

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At this stage of the proceedings, if Plaintiff disagrees with the Magistrate Judge’s

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screening order, his remedy is to file a Second Amended Complaint clearly and succinctly

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stating the allegations and claims upon which he wishes to proceed. Plaintiff was forewarned

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in the screening order that if he does not file a Second Amended Complaint, this action will be

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dismissed. (Doc. 28 at 16 ¶4.) .

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Plaintiff shall be granted additional time to comply with the screening order. After

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Plaintiff files the Second Amended Complaint, the court will screen it based on the allegations

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and claims stated therein.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed on August 27, 2014, is DENIED;

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2.

Plaintiff is required to comply with the Magistrate Judge’s screening order of

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August 12, 2014;
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Within thirty days from the date of service of this order, Plaintiff shall file a

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Second Amended Complaint, pursuant to the court’s screening order of August

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12, 2014; and

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If Plaintiff fails to file a Second Amended Complaint, this action will be
dismissed with prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated: October 29, 2014
SENIOR DISTRICT JUDGE

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