Sanchez v. Virga, et al.,

Filing 22

ORDER signed by Magistrate Judge Carolyn K. Delaney on 04/12/12 ordering plaintiff's request for an extension of time 21 is granted. Plaintiff's second amended complaint shall be filed within 30 days of this order. Plaintiff's 04/02/12 motion for reconsideration 21 is denied in all respects except that the page limit for plaintiff's second amended complaint is extended to 35 pages. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MANUEL GUADALUPE SANCHEZ, JR.,

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Plaintiff,

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vs.

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No. CIV S-10-2029 CKD P

T. VIRGA, et al.,

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Defendants.

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ORDER
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Plaintiff has filed a motion requesting that the court reconsider several aspects of

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the screening order issued March 16, 2012. A district court may reconsider a ruling under

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Federal Rule of Civil Procedure 60(b). Generally speaking, “[r]econsideration is appropriate if

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the district court (1) is presented with newly discovered evidence, (2) committed clear error or

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the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling

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law.” Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.

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1993). Plaintiff has consented to all proceedings in this matter being held before a United States

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Magistrate Judge. See 28 U.S.C. § 636(c).

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First, plaintiff asks that the court extend the page limit on plaintiff’s second

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amended complaint from 30 pages to 35-40 pages. Good cause appearing, the page limitation

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will be extended to 35 pages. The court expects plaintiff to adhere to his representation in his

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motion that he will not use small print in drafting his second amended complaint.

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Second, plaintiff asks that he be allowed to include references to “Doe”

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defendants. This request will be denied. If plaintiff obtains the names of persons whom he feels

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should be defendants in this action through discovery or some other means, plaintiff may file a

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motion for leave to file an amended complaint.

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Third, plaintiff asks that he be allowed to include his claim that his validation as a

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gang member violates rights arising under the First Amendment. Essentially, plaintiff asserts

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that he was validated as a gang member, at least in part, because plaintiff possessed items

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plaintiff describes as “cultural art.” While the court assumes plaintiff has a right under the First

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Amendment to possess such items, he does not have a First Amendment right to not have the

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items used as evidence that he is a member of a prison gang in violation of prison rules.

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Plaintiff’s motion for reconsideration with respect to his First Amendment claim will be denied.

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Fourth, plaintiff was ordered not to include his third, fourth, fifth, and seventh

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causes of action from his amended complaint in his second amended complaint. Plaintiff objects

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to this without pointing to any basis for his objection. Plaintiff’s motion for reconsideration of

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this aspect of the court’s screening order will be denied.

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Plaintiff also requests an extension of time to file his second amended complaint.
Good cause appearing, that request will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for an extension of time to file his second amended

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complaint is granted.

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2. Plaintiff’s second amended complaint shall be filed within 30 days of this

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order.

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3. Plaintiff’s April 2, 2012 motion for reconsideration is denied in all respects
except that the page limit for plaintiff’s second amended complaint is extended to 35 pages.
Dated: April 12, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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sanc2029.36