Freeman v. St. Clair, et al.

Filing 24

ORDER DENYING 23 Motion for Reconsideration of Dismissal of Complaint, signed by District Judge Anthony W. Ishii on 12/21/2020. This action remains closed. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY FREEMAN,

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Plaintiff,
v.
ST. CLAIR, et al.,

Case No. 1:18-cv-00621-AWI-BAM (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION OF DISMISSAL OF
COMPLAINT
(Doc. No. 23)

Defendants.

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Plaintiff Larry Freeman is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action under 42 U.S.C. § 1983.
On April 24, 2019, the assigned Magistrate Judge granted Plaintiff leave to file a first-

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amended complaint or a notice of voluntary dismissal. Doc. No. 10. Plaintiff was expressly

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warned that if he failed to file an amended complaint in compliance with the Court’s order, this

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action would be dismissed for failure to state a claim and failure to obey a court order. Id. at 12.

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On June 11, 2019, following Plaintiff’s failure to communicate with the Court, the

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Magistrate Judge issued findings and recommendations recommending dismissal of this action,

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with prejudice, for failure to state a claim, failure to obey a Court order, and failure to prosecute.

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Doc. No. 11. Those findings and recommendations were served on Plaintiff and contained notice

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that any objections thereto were to be filed within fourteen (14) days after service. Id. at 13.

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On July 12, 2019, after a de novo review of the case, the Court adopted the findings in full
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and dismissed this action, with prejudice, due to Plaintiff’s failure to state a claim, failure to obey

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a court order, and failure to prosecute. Doc. No. 12. Judgment was entered the same date. Doc.

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No. 13.
On July 15, 2019, the Clerk docketed Plaintiff’s objections to the findings and

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recommendations. Doc. No. 14. On November 21, 2019, the Court found that relief from

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judgment and the order adopting the findings and recommendations was appropriate and ordered

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Plaintiff to file either a Rule 41(a) dismissal or an amended complaint within thirty (30) days.

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Doc. No. 16. Plaintiff was warned that failure to timely comply with the Court’s order would

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result in the readoption of the findings and recommendations and the closure of this case without

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further notice. Id.

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Following two extensions of time (Doc. Nos. 18, 20), the deadline expired for Plaintiff to

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file a Rule 41(a) dismissal, amended complaint, or properly supported request for a reasonable

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extension of time, and Plaintiff otherwise failed to communicate with the Court. Accordingly, on

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June 29, 2020, the Court readopted the June 11, 2019 findings and recommendations in full and

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dismissed this action, with prejudice, due to Plaintiff’s failure to state a claim, failure to obey a

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court order, and failure to prosecute. Doc. No. 21. Judgment was entered the same date. Doc.

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No. 22.

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Currently before the Court is Plaintiff’s motion for clarification and reconsideration of

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dismissal, filed October 29, 2020. Doc. No. 23. Plaintiff contends that he mailed a completed

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amended complaint to the Court in February 2020, a response to the Court’s order granting his

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second extension of time in March 2020, and a response to the Court’s order readopting the

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findings and recommendations in July 2020. However, Plaintiff states, none of these mailings

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were received by the prison mailroom to process for mailing, and there are no entries in the

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prison’s legal mail log that these were ever received. Plaintiff states that he cannot provide exact

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dates of the mailings because he fears that prison staff will falsify a dated log using those dates.

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Plaintiff includes other allegations regarding mail tampering by prison staff related to other legal

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mailings and grievance forms. The Court will construe the filing as a motion for reconsideration.

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In his motion, it appears Plaintiff is requesting that the Court reopen his case yet again to
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provide him an opportunity to file an amended complaint, based on his statements that his legal

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mail was prevented from reaching the Court. However, Plaintiff has provided no support, other

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than his own assertions, that he actually prepared an amended complaint or any other document

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for filing with the Court. Plaintiff has not provided copies of any of the documents he attempted

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to file, nor has he provided a copy of the legal mail log he received from the prison mailroom.

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The Court has discretion to reconsider and either vacate or stand on a prior order. Barber

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v. Hawai‘i, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394,

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397 (9th Cir. 1992). Federal Rule of Civil Procedure 60(b) governs the reconsideration of final

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orders of the district court. Rule 60(b) permits a district court to relieve a party from a final order

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or judgment on the grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect . . . . or

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(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Additionally, when filing a

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motion for reconsideration of an order, a party must 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 motion,

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or what other grounds exist for the motion.” Eastern District of California Local Rule 230(j)(3).

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Plaintiff has not met that burden.

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The Court finds no good cause to grant Plaintiff reconsideration and reopen this action.

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Accordingly, Plaintiff’s motion for reconsideration (Doc. No. 23) is HEREBY DENIED. This

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action remains closed.

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IT IS SO ORDERED.
Dated: December 21, 2020
SENIOR DISTRICT JUDGE

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