Hooker v. Kimura-Yip et al

Filing 47

ORDER signed by Judge Lawrence K. Karlton on 4/9/2014 ORDERING 46 Plaintiff's Motion for leave to expand the second amended complaint is DENIED; and plaintiff is GRANTED 30 days from the date of this order in which to file a Second Amended Complaint. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD OLIVER HOOKER,

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No. 2:11-cv-0899 LKK CKD P

Plaintiff,
v.

ORDER

T. KIMURA-YIP, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. On January 2, 2014, plaintiff filed a document styled “Motion for Leave to

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Expand the Second Amended Complaint.” (ECF No. 46.) The court construes this document as a

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motion for reconsideration of this court’s December 5, 2013 order (ECF No. 45).

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In that order, the court granted plaintiff thirty days “in which to file a Second Amended

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Complaint raising only Eighth Amendment claims based on allegations of events that occurred on

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or after his transfer to California State Prison-Corcoran in February 2011 and naming individuals

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in place of the Doe defendant at California State Prison-Los Angeles County . . . [.]” (ECF No.

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45 at 3-4) (emphasis added). The court agreed with the magistrate judge’s findings that “the

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allegations of the first amended complaint of events through 2011 do not state a claim for

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violation of plaintiff’s Eighth Amendment rights based on deliberate indifference to his serious

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medical needs,” and thus limited the scope of the Second Amended Complaint as set forth above.

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(Id. at 3.)

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By his motion for reconsideration, plaintiff seeks leave to include in the second amended

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complaint allegations of alleged deliberate indifference to his need for adequate medical care for

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hyperlipidemia during the period between June 2007 and September 2010 when plaintiff was

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incarcerated at High Desert State Prison (High Desert). A district court may reconsider a ruling

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under either Federal Rule of Civil Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J,

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Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). “Reconsideration is

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appropriate if the district court (1) is presented with newly discovered evidence, (2) committed

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

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controlling law.” Id. at 1263.

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Plaintiff seeks reconsideration on the ground that the delays in cholesterol screening and

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treatment with medication during the period plaintiff was at High Desert were as significant as

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those he has allegedly suffered while at California State Prison-Corcoran and California State

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Prison-Los Angeles County. However, in the amended complaint plaintiff alleges that on

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September 24, 2010, his lipid tests were normal and prior to this test he was “taking 500 mg. of

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Niacin and 81 mg. of Aspirin, twice daily.” Amended Complaint, filed June 11, 2012 (ECF No.

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27) at 18-19. Plaintiff does not allege any adverse medical consequences as a result of the alleged

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delays in necessary care at Susanville, and he alleges that before he left High Desert his

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cholesterol was normal and he was on medication. For that reason, the limitations in the

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December 5, 2013 order were neither clearly erroneous nor manifestly unjust and plaintiff’s

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motion will be denied. Plaintiff will be granted an additional thirty days to file a second amended

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complaint that complies with the terms of the December 5, 2013 order.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Plaintiff’s motion for leave to expand the second amended complaint (ECF No. 46) is

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denied; and

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2. Plaintiff is granted thirty days from the date of this order in which to file a Second

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Amended Complaint. Failure to file a Second Amended Complaint in accordance with the

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requirements of this order and the December 5, 2013 order may result in dismissal of this action.

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DATED: April 9, 2014.

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