Burnett v. Lima et al

Filing 15

ORDER DENYING 13 Request for Reconsideration signed by District Judge Dale A. Drozd on 7/6/2017. Amended Complaint or Notice due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS BURNETT, 12 13 14 15 No. 1:16-cv-01671-DAD-SAB Plaintiff, v. ORDER DENYING REQUEST FOR RECONSIDERATION L. LIMA et al., (Doc. No. 13) Defendants. 16 17 Plaintiff Carlos Burnett is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. Currently before the court is plaintiff’s objection to the assigned 19 magistrate judge’s April 5, 2017 screening order. 20 21 BACKGROUND On April 5, 2017, the assigned magistrate judge issued an order finding that plaintiff had 22 sufficiently stated (1) a cognizable excessive use of force claim against defendants Christopher 23 Constello, Brent Urban, and William Jones; and (2) a cognizable claim for failure to intervene 24 against defendant M. Lefler. (Doc. No. 10.) The magistrate judge also found that plaintiff failed 25 to allege facts giving rise to an unrelated claim of denial of access to the courts. (Id.) 26 Furthermore, the magistrate judge noted that plaintiff’s complaint appeared to attempt to state 27 claims arising from two separate sets of unrelated facts, with excessive force and failure to 28 intervene claims on the one hand, and an access to the courts claim on the other. The court 1 1 cautioned that plaintiff must choose which set of claims he wishes to pursue in this action, 2 because plaintiff could not be allowed to maintain both in one action. (See id. at 4.) The court 3 then directed plaintiff to either file an amended complaint or notify the court of his intent to 4 proceed only on his excessive use of force claim. (Id. 6–8.) In response to a subsequent 5 ambiguous filing by plaintiff, the assigned magistrate again ordered the plaintiff either file an 6 amended complaint or notify the court of his intent to proceed solely on the cognizable claims. 7 (Doc. No. 12.) 8 9 10 11 On May 1, 2017, plaintiff filed objections to the court’s April 5, 2017 order, requesting that this court reconsider the magistrate judge’s order. (Doc. No. 13.) LEGAL STANDARD Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may 12 be referred to and decided by a magistrate judge, subject to review by the assigned district judge. 13 See also Local Rule 303(c). The district judge shall modify or set aside any part of the magistrate 14 judge’s order which is “found to be clearly erroneous or contrary to law.” Local Rule 303(f). See 15 also 28 U.S.C. § 636(b)(1)(A). On a motion to reconsider a magistrate judge’s non-dispositive 16 order, the magistrate judge’s factual determinations are reviewed for clear error, and the 17 magistrate judge’s legal conclusions are reviewed to determine whether they are contrary to law. 18 United States v. McConney, 728 F.2d 1195, 1200–01 (9th Cir. 1984), overruled on other grounds 19 by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir. 1991). “A magistrate judge’s decision is 20 ‘contrary to law’ if it applies an incorrect legal standard, fails to consider an element of applicable 21 standard, or fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Martin 22 v. Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014) 23 (internal quotations and citations omitted). 24 DISCUSSION 25 Here, plaintiff objects to the court’s determination that certain claims are not related. 26 Specifically, plaintiff “admits, and denies no unrelated claims . . . .” (Doc. No. 13 at 2.) Having 27 reviewed plaintiff’s complaint, this court finds that the magistrate judge’s prior orders are neither 28 clearly erroneous nor contrary to law. In his complaint, plaintiffs allege two separate set of facts 2 1 giving rise to two sets of claims against two sets of defendants. The court finds no error in the 2 magistrate judge’s conclusions that plaintiff has stated cognizable claims for excessive force and 3 failure to intervene; and that plaintiff has failed to state facts giving rise to a claim of denial of 4 access to the courts. Moreover, this court agrees that even if plaintiff alleged facts sufficient to 5 support all his claims against all named defendants, he cannot proceed on both sets of claims in 6 this action; he must file two separate actions. Accordingly, plaintiff’s request for reconsideration 7 of the April 5, 2017 screening order will be denied. 8 CONCLUSION 9 For the reasons set forth above, 10 1. 11 Plaintiff’s motion for reconsideration of the April 5, 2017 screening order (Doc. No. 13) is denied; 12 2. 13 Within thirty (30) days from the date of service of this order, plaintiff shall either (a) file a written notice with the court indicating that he wishes to proceed only 14 on his excessive force and failure to intervene claims, recognized as 15 cognizable by the magistrate judge’s prior screening order (see Doc. No. 16 10);1 17 (b) file an amended complaint alleging either: 18 (i) plaintiff’s excessive use of force and failure to intervene claims; or 19 (ii) plaintiff’s denial of access to the courts claim; and 20 3. Failure to comply with this order may result in dismissal of this action for failure to 21 22 obey a court order. IT IS SO ORDERED. 23 Dated: July 6, 2017 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 1 Plaintiff is advised that if he chooses to proceed only on his excessive force and failure to intervene claims, he may still file a separate action presenting his access to the courts claim. 3

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