Payne v. Gipson et al

Filing 24

DISMISSAL ORDER, signed by Chief Judge Ralph R. Beistline on 10/27/15. CASE CLOSED. (Verduzco, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MYRON A. PAYNE,
Case No. 1:13-cv-01557-RRB
Plaintiff,
DISMISSAL ORDER
vs.
C. GIPSON, et al.,
Defendants.

At Docket 23 Plaintiff Myron A. Payne, a state prisoner appearing pro se and in forma
pauperis, filed a motion to stand on his complaint and objecting to this Court’s order
dismissing certain claims and defendants. The procedural history of this case is briefly
recounted.
January 27, 2015: In screening the Complaint, the Court dismissed without leave to
amend Payne’s procedural due process claim and in its entirety as to certain defendants. The
Complaint was dismissed with leave to amend as to certain defendants with respect to his
claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).1
March 16, 2015: The Court granted Payne through May 2, 2015, within which to file
his amended Complaint.2

1

Docket 12.

2

Docket 14.

DISMISSAL ORDER.
Payne v. Gipson, 1:13-cv-01557-RRB – 1

June 2, 2015: The Court dismissed the action for failure to file an amended complaint
within the time allowed.3
June 8, 2015: Payne moved to set aside the dismissal and for reconsideration of the
Court’s January 27, 2015, Order.4
July 8, 2015: The Court granted the motion to set aside the dismissal, denied the
motion to the extent it sought reconsideration of the January 27, 2015, Dismissal Order, and
granted Payne through and including August 10, 2015, within which to file an amended
complaint.5
August 20, 2015: The Court denied Payne’s Motion to Stand on His Complaint and
for reconsideration of its January 27, 2015, Dismissal Order. The Court did grant Payne
through and including September 20, 2015, within which to file an amended complaint
consistent with the Court’s January 27, 2015, Dismissal Order.6
September 18, 2015: The Court extended the time for Payne to file his amended
complaint through and including October 30, 2015.7
Instead of filing an amended complaint in accordance with the Court's Order, Payne
filed the current motion, which does nothing more than renew his earlier motions for
reconsideration. Because the Court previously fully considered and rejected Payne’s
3

Docket 15.

4

Docket 17.

5

Docket 18.

6

Docket 20.

7

Docket 22.

DISMISSAL ORDER.
Payne v. Gipson, 1:13-cv-01557-RRB – 2

arguments on two occasions the Court finds no reason to vacate its Dismissal Order. With
respect to the extent Payne purports to stand on his original Complaint, as the Court
explained, because it was dismissed it in its entirety with leave to amend, there is no operative
pleading before this Court upon which to stand.
It is patently clear that Payne misunderstands the scope of his rights to bring this action
as well as the effect of the Dismissal Order. The Court did not find that the case was moot in
its entirety. Because Payne was no longer housed at California State Prison–Corcoran
(“CSP-COR”) the Court found that his claim for injunctive relief had become moot. The Court
made clear that Payne’s claims for damages remained a live controversy. On the other hand
if, as it appears from Payne’s current motion, his rights are being violated at his current place
of incarceration (Kern Valley State Prison), not only is it not properly pleaded in his Complaint,
Payne’s remedy is to file a separate action. The Complaint in this case, even if Payne were
permitted to stand on it and proceed, does not extend beyond whatever injury Payne may
have suffered while incarcerated at CSP-COR. To the extent that Payne attempts to expand
his complaint to the “CDC system wide,” it is in essence a class action that is not properly
before this Court.8 Nor, for that matter, is the Court inclined to permit Payne, appearing pro
se, to proceed as the representative of the class.
Accordingly, to the extent that Payne seeks further reconsideration of this Court's
dismissal of his action it is hereby DENIED.

8

See Fed. R. Civ. P. 23.

DISMISSAL ORDER.
Payne v. Gipson, 1:13-cv-01557-RRB – 3

Payne has continually failed to comply with the Orders of the Court granting him leave
to file an amended complaint. In filing the current motion declining to file an amended
complaint despite the several opportunities he has been given and continuing his quest to
seek relief to which he is not entitled, Payne has clearly indicated that he has no intention of
filing an amended complaint consistent with the Court’s order. Consequently, granting Payne
further leave to file an amended complaint would be futile.9 Therefore, the Complaint on file
herein is hereby DISMISSED without leave to amend.10
This Court, having fully considered the matter, finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any appeal would be frivolous or taken in bad faith.11 Accordingly, Payne’s in
forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED this 27th day of October, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

9

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th Cir.
2013) (“A district court may deny leave to amend when amendment would be futile.”); Lopez
v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (explaining that leave to amend
should be given unless amendment would be futile).
10

Fed. R. Civ. P. 41(a)(2); see Hells Canyon Preservation Council v. U. S. Forest
Serv. 403 F.3d 683, 689 (9th Cir. 2005) (the court may do so sua sponte).
11

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002).
DISMISSAL ORDER.
Payne v. Gipson, 1:13-cv-01557-RRB – 4