Coleman v. California Department of Correction and Rehabilitation et al

Filing 78

ORDER signed by Magistrate Judge Kendall J. Newman on 12/18/15 DENYING 76 Motion. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT COLEMAN,

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No. 2:13-cv-1021 KJN P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and is proceeding in forma pauperis. On November 16, 2015, plaintiff filed a

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document entitled “Motion for Amendment to Conform to the Evidence Pursuant to Fed. R. Civ.

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P. 15(b).” (ECF No. 76.) Plaintiff claims that he filed a motion for reconsideration on August 4,

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2015, and because no decision has yet been rendered, he seeks a motion for amendment to

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conform to the evidence. Plaintiff seeks to revisit his arguments concerning the exhaustion of

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administrative remedies. (ECF No. 76, passim.)

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First, amendment of the complaint is not appropriate to address the issue of exhaustion of

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administrative remedies because exhaustion is an affirmative defense that is not required to be

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addressed in the complaint. But even if he properly sought leave to amend, his motion was not

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accompanied by a proposed amended complaint. As a prisoner, plaintiff’s pleadings are subject
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to evaluation by this court pursuant to the in forma pauperis statute. See 28 U.S.C. § 1915A.

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Because plaintiff did not submit a proposed amended complaint, the court is unable to evaluate it.

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Second, the issue of exhaustion has been fully briefed. Plaintiff’s motion for

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reconsideration was construed as objections to the July 22, 2015 findings and recommendations,

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which ruled on defendants’ motion for summary judgment. Plaintiff filed an opposition to the

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motion for summary judgment and defendants filed a reply. Local Rule 230(l). To the extent

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plaintiff seeks to revisit or supplement arguments made in conjunction with the motion for

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summary judgment, such belated efforts are not permitted. In addition, the findings and

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recommendations provided for the filing of objections by plaintiff, and a reply by defendants. No

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additional filings were permitted. (ECF No. 67.)
Finally, the issue of exhaustion of administrative remedies has now been decided. (ECF

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No. 77.) If plaintiff seeks to further challenge the issue of exhaustion, he may do so on appeal

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once final judgment in this matter is entered.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s November 16, 2015 motion

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(ECF No. 76) is denied without prejudice.

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Dated: December 18, 2015

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/cole1021.den

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