Riley v. Tallerico et al

Filing 28

ORDER DENYING Plaintiff's Motion for Reconsideration 25 , signed by Magistrate Judge Erica P. Grosjean on 5/10/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANNON RILEY,
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Plaintiff,
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v.

1:16-cv-01189-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF NO. 25)

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TALLERICO, et al.,
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Defendants.
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Shannon Riley (“Plaintiff”) 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. On April 24, 2017, the Court screened

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Plaintiff’s Third Amended Complaint. (ECF No. 24). The Court found the following cognizable

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claims: a claim against Officer Yerry for violation of Plaintiff’s Fourteenth Amendment rights to

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equal protection related to the May 16, 2015 incident; a claim for retaliation in violation of the

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First Amendment against Officers Dyer and Huckleberry regarding their cell search; a claim

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against Defendant Tallerico for retaliation in violation of the First Amendment; and a claim

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against Officer Yerry for violation of the Eighth Amendment. (Id. at 10). The Court found no

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other claims against these defendants or against any other defendants. (Id.).

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On May 9, 2017, Plaintiff filed what the Court construes as a motion to reconsider its
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screening order.1 (ECF No. 25).
Federal Rule of Civil Procedure 60(b) governs grounds for relief from an order:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b).

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Plaintiff has failed to show any of the above-mentioned reasons. Plaintiff describes

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various facts he believes the Court overlooked, and includes legal standards Plaintiff apparently

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believes the Court should have considered but did not.

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Plaintiff’s motion, its screening order, and the Third Amended Complaint, and the Court did not

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overlook any factual allegations in the Third Amended Complaint or make a mistake regarding

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the applicable legal standards or their application.

However, the Court has reviewed

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Plaintiff’s motion also includes additional factual allegations, a declaration, and a new

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claim. Plaintiff’s motion specifies what property was taken from him, and has attached as Exhibit

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A a declaration from inmate David Harring that describes what David Harring saw in regards to

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Plaintiff’s property being taken. Additionally, Plaintiff’s motion attempts to assert a new claim

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for conspiracy.

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A motion for reconsideration is not the appropriate way to add factual allegations and a

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new claim to a complaint. If Plaintiff wishes to add additional factual allegations and a claim for

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conspiracy to his complaint, he needs to file a motion for leave to amend his complaint.

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The Court notes that if Plaintiff does file a motion for leave to amend his complaint, and if

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the Court grants that motion, the amended complaint will be screened in due course. This may

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Plaintiff filed his motion under Federal Rule of Civil Procedure 59(e), but no judgment has been
entered in this case.
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result in delay to the claims already found cognizable.
Accordingly, based on the foregoing, IT IS ORDERED that Plaintiff’s motion for
reconsideration is DENIED.

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IT IS SO ORDERED.
Dated:

May 10, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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