Cruz v. Espinosa, et al.

Filing 10

ORDER GRANTING Plaintiff's 9 Motion for Reconsideration; ORDER VACATING Judgment and DIRECTING Clerk of Court to REOPEN Action and Provide Plaintiff with a Copy of the Court's Screening Order signed by Magistrate Judge Barbara A. McAuliffe on 1/23/2015. Case reopened. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY CRUZ,

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Plaintiff,
v.
M. ESPINOSA, et al.,

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Defendants.

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1:13-cv-01762-BAM (PC)
ORDER GRANTING PLAINTIFF’S
MOTION FOR RECONSIDERATION
(ECF No. 9)
ORDER VACATING JUDGMENT AND
DIRECTING CLERK OF COURT TO
REOPEN ACTION AND PROVIDE
PLAINTIFF WITH A COPY OF THE
COURT’S SCREENING ORDER

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I.

Procedural Background

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Plaintiff Larry Cruz (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 1, 2013. On

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October 28, 2014, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, and

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found that Plaintiff stated a cognizable claim for violation of the Eighth Amendment against

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Defendants Dunn, Hiracheta, Silva and Espinosa, but failed to state any other claims. The Court

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directed Plaintiff to either file a first amended complaint or notify the Court that he did not wish

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to file an amended complaint and was willing to proceed only on the cognizable Eighth

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Amendment claim within thirty days from the date of service. (ECF No. 6.)

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On December 9, 2014, after more than thirty days had passed and Plaintiff failed to

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respond to the Court’s order, the Court dismissed the action for failure to obey a court order.

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(ECF No. 7.) Judgment was entered the same date. (ECF No. 8.)

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On January 12, 2015, Plaintiff filed the instant motion for reconsideration of the order

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dismissing this action. (ECF No. 9.) Plaintiff submitted the motion for mailing on January 5,

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2015. (ECF No. 9, p. 31.)

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II.

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Applying the prison mailbox rule, Plaintiff filed his motion for reconsideration 27 days

Motion for Reconsideration

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after entry of judgment. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). A motion for

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reconsideration, such as that filed by Plaintiff, is treated as a motion to alter or amend judgment

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under Federal Rule of Civil Procedure 59(e) if it is filed within 28 days after the entry of

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judgment. United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992); Fed. R. Civ. P.

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59(e).

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Relief pursuant to Rule 59(e) is appropriate when there are highly unusual circumstances,

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the district court is presented with newly discovered evidence, the district court committed clear

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error, or a change in controlling law intervenes. School Dist. No. 1J, Multnomah County, Oregon

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v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). To avoid being frivolous, such a motion must

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provide a valid ground for reconsideration. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500,

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505 (9th Cir.1986).

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Here, Plaintiff claims that reconsideration is warranted because he never received the

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Court’s screening order dated October 28, 2014. In his declaration supporting the motion,

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Plaintiff reports that on September 8, 2014, he filed a “Request Update Status on Complaint”

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regarding this action. The Clerk of the Court sent Plaintiff a copy of the docket, which showed

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that Plaintiff’s complaint had not yet been screened. (ECF No. 9, Pl’s Dec. ¶¶ 4-5, Ex. B.)

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Thereafter, on December 12, 2014, Plaintiff received the Court’s order that this action had been

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dismissed for failure to obey the Court’s October 28, 2014 order. Plaintiff declares under

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penalty of perjury that he never received the Court’s October 28, 2014 order. (ECF No. 9, Pl’s

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Dec. ¶¶ 6-7.) Plaintiff states that if he had received any court documents, then he would comply

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with court rules in a timely manner. (Id. at ¶ 12.)

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The Court has considered Plaintiff’s moving papers, and finds that they support relief

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under Rule 59(e) due to highly unusual circumstances. Plaintiff has represented to the Court

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under penalty of perjury that he did not receive the Court’s October 28, 2014 screening order.

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Plaintiff therefore should not be penalized for failure to obey a court order that he did not

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receive. Accordingly, Plaintiff’s motion to alter or amend the judgment shall be granted. The

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Clerk of the Court will be directed to vacate the entry of judgment, reopen this action and mail

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Plaintiff a copy of the Court’s October 28, 2014 screening order. Within thirty days following

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service of the screening order, Plaintiff must either file a first amended complaint or notify the

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Court in writing that he does not wish to file a first amended complaint and he is willing to

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proceed only on the cognizable Eighth Amendment claim against Defendants Dunn, Hiracheta,

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Silva and Espinosa.

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III.

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Based on the foregoing reasons, it is HEREBY ORDERED as follows:

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1. Plaintiff’s motion for reconsideration is GRANTED;

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2. The Clerk of the Court is directed to VACATE the judgment entered on December 9,

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Conclusion and Order

2014, and reopen this action;
3. The Clerk of the Court shall mail Plaintiff a copy of the Court’s screening order
issued on October 28, 2014;
4. Within thirty (30) days from the date of service of this order, Plaintiff must either:
a. File a first amended complaint curing the deficiencies identified by the Court
in this order, or

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b. Notify the Court in writing that he does not wish to file a first amended

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complaint and he is willing to proceed only on the cognizable Eighth

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Amendment claim against Defendants Dunn, Hiracheta, Silva and Espinosa;

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and

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5. If Plaintiff fails to comply with this order, this action will be dismissed, without

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prejudice, for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 23, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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