Fishman v. State of California et al

Filing 13

ORDER GRANTING Plaintiff's 11 & 12 Motion for Reconsideration; ORDER DIRECTING Clerk to Reopen Case; ORDER DENYING Request for Preliminary Injunctive Relief; ORDER for Clerk to Send Plaintiff a Civil Rights Complaint Form; ORDER GRANTING Thirty-Day Extension of Time to File First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 12/1/2014. (Attachments: # 1 1983 Amended Complaint Form) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UDI FISHMAN,

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Plaintiff,

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vs.
STATE OF CALIFORNIA, et al.,

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Defendants.

1:14-cv-00708-GSA-PC
ORDER GRANTING PLAINTIFF‟S MOTION
FOR RECONSIDERATION
(Docs. 11, 12.)
ORDER DIRECTING CLERK TO REOPEN
CASE
ORDER DENYING REQUEST FOR
PRELIMINARY INJUNCTIVE RELIEF

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ORDER FOR CLERK TO SEND PLAINTIFF
A CIVIL RIGHTS COMPLAINT FORM

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ORDER GRANTING THIRTY-DAY
EXTENSION OF TIME TO FILE FIRST
AMENDED COMPLAINT

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I.

BACKGROUND

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Udi Fishman (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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May 12, 2014. (Doc. 1.) On July 14, 2014, Plaintiff consented to Magistrate Judge jurisdiction

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pursuant to 28 U.S.C. § 636(c), and no other parties have appeared in this action. (Doc. 5.)

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The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order

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on September 5, 2014, dismissing the Complaint for failure to state a claim, with leave to file
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an amended complaint within thirty days. (Doc. 6.) The thirty-day deadline expired, and

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Plaintiff failed to file an amended complaint or otherwise respond to the court‟s order. On

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October 16, 2014, the court issued an order dismissing this action for Plaintiff‟s failure to state

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a claim, and judgment was entered. (Docs. 7, 8.)

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On October 30, 2014 and November 11, 2014, Plaintiff filed motions for

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reconsideration of the court‟s order dismissing this case, requested an extension of time to file

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an amended complaint, and requested preliminary injunctive relief. (Docs. 11, 12.)

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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

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

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manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation

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omitted). The moving party “must demonstrate both injury and circumstances beyond his

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration of

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an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion.”

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

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations

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marks and citations omitted), and “[a] party seeking reconsideration must show more than a

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disagreement with the Court‟s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).
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Plaintiff’s Motion

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A.

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Plaintiff requests reconsideration of the court‟s order dismissing this case, which was

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based on Plaintiff‟s failure to comply with the court‟s September 5, 2014 order which required

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him to file an amended complaint within thirty days. Plaintiff declares under penalty of perjury

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that he did not receive the court‟s September 5, 2014 order until October 14, 2014, nine days

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after the deadline for filing the amended complaint had passed. (Decl. of Pltf., Doc. 12 at 3.)

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Plaintiff declares that on August 26, 2014, he was involuntarily transferred from Shafter

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Community Correctional Facility (SCCF) in Shafter, California, to Wasco State Prison (WSP)

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in Wasco, California, without any of his legal documents, court addresses, case numbers,

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forms, or stationeries. (Id. at 8 ¶16.) Plaintiff was detained at WSP Reception until October 8,

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2014, and during this time his mail was withheld at SCCF. (Id. ¶17.) On October 14, 2014,

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after Plaintiff was returned to SCCF, the court‟s September 5, 2014 order was delivered to him.

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(Id. ¶18.) Plaintiff promptly responded by sending a request for extension of time to the court

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on October 17, 2014.

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dismissing this action. (Id. ¶20.) On October 27, 2014, Plaintiff sent a motion to the court for

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“extension of time to file amended complaint, objection to Magistrate‟s order, and request for

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appealability.” (Id. ¶19.) On November 5, 2014, Plaintiff received the court‟s order denying

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his October 17, 2014 request for extension of time as moot. (Id. ¶21.)

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(Id.)

On October 23, 2014, Plaintiff received the court‟s order

Plaintiff also requests a court order for a preliminary injunction, barring his emergency
transfer to another facility.

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B.

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Plaintiff has set forth facts of a strongly convincing nature to induce the court to reverse

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its prior decision dismissing this case. Plaintiff has shown evidence that he was prevented from

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responding to the court‟s September 5, 2014 order because on August 26, 2014, he was

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involuntarily transferred from SCCF to WSP, without his legal documents, court addresses,

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case numbers, forms, or stationeries, and detained there until October 8, 2014, during which

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time his mail was withheld at SCCF. (Decl. of Pltf., Doc. 9.) Plaintiff has shown evidence that

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he did not receive the court‟s September 5, 2014 order until October 14, 2014, after the

Discussion

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deadline for filing the amended complaint had expired. (Id.) Based on Plaintiff‟s assertions

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under penalty of perjury, the court finds that Plaintiff used due diligence in attempting to

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comply with the court‟s order, but his efforts were thwarted by denial of access to his legal and

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personal property, and a delay in his mail delivery, both which were out of his control.

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Therefore, Plaintiff‟s motion for reconsideration shall be granted, and this case shall be

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reopened. The court also finds good cause to grant Plaintiff an extension of time to file the

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amended complaint.

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With respect to Plaintiff‟s request for a temporary injunction barring his emergency

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transfer to another facility, the court lacks jurisdiction to grant the relief sought by Plaintiff.

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There is presently no case or controversy before the court, because Plaintiff‟s Complaint was

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dismissed on September 5, 2014, and he has not filed an amended complaint. See Zepeda v.

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United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985); City of Los Angeles v.

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Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams.

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United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58

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(1982). Without a complaint on file, the Court lacks jurisdiction to grant injunctive relief, and

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Plaintiff‟s request must be denied.

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III.

CONCLUSION AND ORDER

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The court finds that Plaintiff has shown evidence that this case should be reopened.

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Plaintiff shall also be granted thirty days in which to file an amended complaint, pursuant to the

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court‟s order of September 5, 2014.

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The amended complaint should be brief, but must state what each named defendant did

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that led to the deprivation of Plaintiff‟s constitutional or other federal rights. Fed. R. Civ. P.

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8(a); Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948-49 (2009); Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002).

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defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 676. Plaintiff must

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set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟” Id. at 677

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(quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must also

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demonstrate that each defendant personally participated in the deprivation of his rights. Jones,

There is no respondeat superior liability, and each

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297 F.3d at 934 (emphasis added). In order to hold an individual defendant liable, Plaintiff

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must name the individual defendant, describe where that defendant is employed and in what

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capacity, and explain how that defendant acted under color of state law. Plaintiff should state

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clearly, in his or her own words, what happened. Plaintiff must describe what each defendant,

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by name, did to violate the particular right described by Plaintiff.

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Plaintiff is advised that a short and simple statement of his claim will speed the

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screening of his case, and will help the litigation proceed in a more efficient manner. Plaintiff

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should carefully review the court‟s September 5, 2014 order and only include the claims he

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believes are cognizable. Plaintiff should note that although he has been given the opportunity

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to amend, it is not for the purpose of adding new defendants for unrelated issues. Plaintiff may

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not change the nature of this suit by adding new, unrelated claims in his amended complaint.

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff is reminded that an amended complaint supercedes the original complaint,

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Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be

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complete in itself without reference to the prior or superceded pleading, Local Rule 220.

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

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involvement of each defendant must be sufficiently alleged. Plaintiff is warned that “[a]ll

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causes of action alleged in an original complaint which are not alleged in an amended

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complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing to London v.

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Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth v. Humana, 114 F.3d

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1467, 1474 (9th Cir. 1997). The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed under

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penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff‟s motions for reconsideration, filed on October 30, 2014 and November
17, 2014, are GRANTED;

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2.

The Clerk of Court is directed to REOPEN this case;

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3.

Plaintiff‟s request for preliminary injunctive relief is DENIED;
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The Clerk 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 file

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a First Amended Complaint pursuant to the court‟s September 5, 2014 order,

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curing the deficiencies identified by the court in the order;

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Plaintiff shall caption the amended complaint “First Amended Complaint” and
refer to the case number 1:14-cv-00708-GSA-PC; and

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

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IT IS SO ORDERED.
Dated:

December 1, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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