Allen v Aramark

Filing 15

ORDER denying 14 Motion to reopen case signed by Magistrate Judge Gregory G. Hollows on 01/12/12. (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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AKAL CALVERT DAMU ALLEN, SR.,

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Plaintiff,

Defendant.

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No. CIV S-11-2117 GGH P

ORDER

vs.
ARAMARK,

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/

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Plaintiff is a county jail inmate proceeding pro se and in forma pauperis with an

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action pursuant to 42 U.S.C. § 1983. This case is before the undersigned pursuant to plaintiff’s

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consent. Doc. 4. This case was closed on December 12, 2011, but on December 21, 2011,

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plaintiff filed a motion to reopen the case that the court construes as a motion for relief from a

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judgment or order pursuant to Fed. R. Civ. P. 60(b).

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Under Rule 60(b), a party may seek relief from judgment and to re-open his case

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in limited circumstances, “including fraud, mistake, and newly discovered evidence.” Gonzalez

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v. Crosby, 545 U.S. 524, 528, 125 S. Ct. 2641, 2645-46 (2005). Rule 60(b) provides in relevant

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part:

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On motion and upon such terms as are just, the court may relieve a
party ... from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
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neglect; (2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud ..., misrepresentation, or misconduct of
an adverse party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or taken.

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“Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of

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Civil Procedure are addressed to the sound discretion of the district court.” Allmerica Financial

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Life Insurance and Annunity Company v. Llewellyn,139 F.3d 664, 665 (9th Cir. 1997).

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The entirety of plaintiff’s original complaint stated that “Aramark is feeding me

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two colds and one hot. It [is] supposed to be two hots and one cold.” It seemed that plaintiff was

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referring to the meals he was receiving, however the complaint was insufficient to state a

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cognizable claim. The complaint was dismissed on October 13, 2011, and plaintiff was granted

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leave to file an amended complaint within 28 days. Plaintiff was also informed of the

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deficiencies of the complaint and what would be required in an amended complaint. On

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November 1, 2011, plaintiff filed an exhibit with the court that consisted of two pages of jail

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regulations regarding food and meals. On November 9, plaintiff filed a motion to waive the

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filing fee that was denied. Plaintiff never filed an amended complaint so on December 12, 2011,

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the case was closed.

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In his motion to reopen the case, plaintiff states he submitted an amended

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complaint, but the court never received it. Plaintiff also includes two receipts from his jail

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demonstrating that he submitted two different filings to the court. Of course, plaintiff does not

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include a copy of the amended complaint he allegedly filed, with the instant motion. Moreover,

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the dates of the receipts from the jail roughly correspond to the two filings that the court did

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receive that were mentioned above. To the extent plaintiff considered either of these two filings

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his amended complaint, the court does not agree. Plaintiff was informed of the deficiencies of
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his original complaint and informed that any new complaint could not reference the original

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complaint. Filing two pages of jail regulations is not remotely sufficient to be considered an

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amended complaint and it appears there were no problems with the court receiving plaintiff’s

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filings as he suggests. Regardless, plaintiff’s instant motion fails to meet the standard of Rule

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60(b), by simply stating that an amended complaint was sent, without even including a copy of

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the amended complaint. Plaintiff’s motion is denied and the court will not entertain further

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filings from plaintiff.

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In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s motion
to reopen the case (Doc. 14) is denied.
DATED: January 12, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH: AB
alle2117.60b

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