Ware v. McDonald et al

Filing 53

ORDER signed by Magistrate Judge Kendall J. Newman on 12/3/13 denying 50 Motion to Amend the Complaint as untimely. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARTIN WARE,

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No. 2:12-cv-1505 TLN KJN P
Plaintiff,

v.

ORDER

M. McDONALD, et al.,
Defendants.

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On September 3, 2013, the undersigned issued an order and findings and

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recommendations. (ECF No. 43.) The court recommended that plaintiff’s First and Fourteenth

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Amendment claims be dismissed. (Id. at 4.) On November 21, 2013, the district court adopted

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the findings and recommendations, and directed plaintiff to submit the forms necessary to

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accomplish service of process. (ECF No. 49.)

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On November 22, 2013, plaintiff filed a motion for reconsideration directed to the district

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court and to the undersigned. (ECF No. 50 at 1.) Plaintiff notes that he was not granted leave to

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amend his claims alleging violations of the First and Fourteenth Amendments, and seeks leave to

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amend “because plaintiff has no other available remedy for the injury.” (ECF No. 50 at 2.)

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Local Rule 303(b), states “rulings by Magistrate Judges . . . shall be final if no

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reconsideration thereof is sought from the Court within fourteen days . . . from the date of service

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of the ruling on the parties.” Id.
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Here, plaintiff’s motion was given to prison officials for mailing on November 12, 2013.

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(ECF No. 50 at 3.) See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is

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dated from the date prisoner delivers it to prison authorities).1 Thus, even under the mailbox rule,

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plaintiff’s request for reconsideration of the September 3, 2013 order is untimely as it was filed

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over two months after the order.2
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion (ECF No. 50) is denied

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as untimely.

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Dated: December 3, 2013

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ware1505.851

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1

Because the request for reconsideration was given to prison officials for mailing prior to the
district court’s November 21, 2013 order, the court cannot construe plaintiff’s filing as a request
for reconsideration of the November 21, 2013 order.
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Plaintiff did file objections to the findings and recommendations (ECF No. 44), which the
district court considered in the November 21, 2013 order (ECF No. 49).
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