Navarro v. Herdon et al

Filing 29

ORDER signed by Judge Garland E. Burrell, Jr on 9/13/2010 DENYING pltf's 25 motion for reconsideration. (Yin, K)

(PC) Navarro v. Herdon et al

Doc. 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Although the court docket indicates a filing date of September 2, 2010, the court construes the filing date as the date on which petitioner, proceeding pro se, signed and delivered his brief to prison officials for mailing (see Dkt. No. 25, at 8). Pursuant to this "mailbox rule," August 31, 2010 is considered the filing date of plaintiff's brief. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003).
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MARIO NAVARRO, Plaintiff, vs. DEBRA HERNDON, et al., Defendants. / On August 10, 2010, the Magistrate Judge issued an order which, inter alia, dismissed defendant Jeanne Woodford, former Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), due to the absence in the complaint of factual allegations that Woodford directly or in her supervisory role violated plaintiff's constitutional rights. On August 31, 2010,1 plaintiff filed a motion for reconsideration of the Magistrate Judge's order. (Dkt. No. 25.) Local Rule 303(b) provides that "[r]ulings by Magistrate Judges . . . shall be final if no reconsideration thereof is sought from the Court within fourteen (14) days ORDER No. 2:09-cv-1878 GEB KJN P

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calculated from the date of service of the ruling on the parties. . ." E.D. Cal. L. R. 303(b). An additional three (3) days are added to this period when, as here, service of the court's order is made upon plaintiff by mail. See Fed. R. Civ. P. 6(d), 5(b)(2)(C). The deadline for filing a motion for reconsideration of the Magistrate Judge's August 10, 2010 Order was therefore August 27, 2010. Plaintiff's motion for reconsideration, filed August 31, 2010, is therefore untimely. Even if considered on the merits, plaintiff's motion must be denied. Plaintiff asserts that the requisite causal connection between Woodford and the conduct which plaintiff challenges is demonstrated by the issuance of a decision at the Third Level Review, denying one of plaintiff's administrative appeals, by an Appeals Examiner who acted on behalf of Woodford. Plaintiff also contends that Woodford is responsible for the promulgation of applicable rules and regulations. However, these allegations, made against Woodford in her official capacity as former CDCR Secretary (and therefore against the state agency itself), are barred by the Eleventh Amendment. See, e.g., Quern v. Jordan, 440 U.S. 332, 344-45 (1979). Plaintiff made the same arguments to the Magistrate Judge who properly found these allegations inadequate to state a cognizable cause of action against Secretary Woodford. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration (Dkt. No. 25) is denied. Dated: September 13, 2010

GARLAND E. BURRELL, JR. United States District Judge

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