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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 SHANNON RILEY, 13 Plaintiff, 14 v. 1:16-cv-01189-EPG (PC) ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION (ECF NO. 25) 15 TALLERICO, et al., 16 Defendants. 17 18 19 Shannon Riley (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. On April 24, 2017, the Court screened 21 Plaintiff’s Third Amended Complaint. (ECF No. 24). The Court found the following cognizable 22 claims: a claim against Officer Yerry for violation of Plaintiff’s Fourteenth Amendment rights to 23 equal protection related to the May 16, 2015 incident; a claim for retaliation in violation of the 24 First Amendment against Officers Dyer and Huckleberry regarding their cell search; a claim 25 against Defendant Tallerico for retaliation in violation of the First Amendment; and a claim 26 against Officer Yerry for violation of the Eighth Amendment. (Id. at 10). The Court found no 27 other claims against these defendants or against any other defendants. (Id.). 28 On May 9, 2017, Plaintiff filed what the Court construes as a motion to reconsider its 1 1 2 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. 3 4 5 6 7 8 9 10 Fed. R. Civ. P. 60(b). 11 Plaintiff has failed to show any of the above-mentioned reasons. Plaintiff describes 12 various facts he believes the Court overlooked, and includes legal standards Plaintiff apparently 13 believes the Court should have considered but did not. 14 Plaintiff’s motion, its screening order, and the Third Amended Complaint, and the Court did not 15 overlook any factual allegations in the Third Amended Complaint or make a mistake regarding 16 the applicable legal standards or their application. However, the Court has reviewed 17 Plaintiff’s motion also includes additional factual allegations, a declaration, and a new 18 claim. Plaintiff’s motion specifies what property was taken from him, and has attached as Exhibit 19 A a declaration from inmate David Harring that describes what David Harring saw in regards to 20 Plaintiff’s property being taken. Additionally, Plaintiff’s motion attempts to assert a new claim 21 for conspiracy. 22 A motion for reconsideration is not the appropriate way to add factual allegations and a 23 new claim to a complaint. If Plaintiff wishes to add additional factual allegations and a claim for 24 conspiracy to his complaint, he needs to file a motion for leave to amend his complaint. 25 The Court notes that if Plaintiff does file a motion for leave to amend his complaint, and if 26 the Court grants that motion, the amended complaint will be screened in due course. This may 27 28 1 Plaintiff filed his motion under Federal Rule of Civil Procedure 59(e), but no judgment has been entered in this case. 2 1 2 3 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. 4 5 6 IT IS SO ORDERED. Dated: May 10, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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