Biagas v. Virga et al

Filing 15

ORDER signed by Magistrate Judge Craig M. Kellison on 10/30/2014 GRANTING plaintiff's 12 , 13 , 14 requests for additional time to file an amended complaint; plaintiff shall file an amended complaint within 30 days; plaintiff's req uest for reconsideration of the order denying his motion for temporary restraining order is DENIED; and plaintiff's filing 8 , to the extent it could be considered a motion, is DENIED as plaintiff fails to allege any specific grounds for relief and fails to request any specific remedy. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

VINCENT J. BIAGAS, SR.,

12

No. 2:13-cv-2656-CMK-P

Plaintiff,

13

vs.

14

T. VIRGA, et al.,

15

ORDER

Defendants.
/

16
17

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

18

to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions for extension of time, and

19

objections to the denial of his prior motion for temporary restraining order (Docs. 12, 13, 14) and

20

a motion for sanctions (Doc. 8).

21

As to his requests for additional time to file an amended complaint, the

22

undersigned finds good cause appearing therefor, and the requests will be granted. Plaintiff shall

23

file an amended complaint within 30 days of the date of this order. Plaintiff is warned that

24

failure to file an amended complaint within the time provided may result in dismissal of this

25

action for lack of prosecution and failure to comply with court rules and orders. See Local Rule

26

110.
1

1

As to his objections to the denial of his motion for a temporary restraining order,

2

the court will construe those objections as a request for reconsideration. Under Federal Rule of

3

Civil Procedure 60(b), the court may grant reconsideration of a final judgment and any order

4

based on, among other things: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

5

newly discovered evidence which, with reasonable diligence, could not have been discovered

6

within ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an

7

opposing party. A motion for reconsideration on any of these grounds must be brought within a

8

reasonable time and no later than one year of entry of judgment or the order being challenged.

9

See Fed. R. Civ. P. 60(c)(1).

10

Here, plaintiff provides no basis for the court to grant reconsideration of the order

11

denying his motion for temporary restraining order. He does not argues that there was any

12

mistake, newly discovered evidence, or misconduct. He simply asks the court to revisit the

13

motion, apparently because he disagrees with the court’s decision. The undersigned finds no

14

basis on which to grant a motion for reconsideration, or a temporary restraining order. The court

15

set forth several reasons why the motion was denied, all of which still apply.

16

As to plaintiff’s motion for sanctions (Doc. 8), he appears to be claiming that he is

17

suffering from some retaliation. The court is unsure exactly what plaintiff is requesting, but to

18

the extent he believes he is being retaliated against for pursing his Constitutional rights or

19

otherwise being mistreated, his remedy may lie in filing a separate action against those

20

individuals who are retaliating against him. Plaintiff does not ask for any specific relief in this

21

motion. He appears to simply be informing the court that he does not agree with the way he is

22

being treated. As there is no specific request for a remedy, and the court cannot see any specific

23

relief the court can grant plaintiff.

24

///

25

///

26

///
2

1

Accordingly, IT IS HEREBY ORDERED that:

2

1.

3

12, 13, 14) are granted;

4
5

2.

3.

10

Plaintiff’s request for reconsideration of the order denying his motion for

temporary restraining order is denied, and

8
9

Plaintiff shall file an amended complaint within 30 days of the date of this

order;

6
7

Plaintiff’s requests for additional time to file an amended complaint (Docs.

4.

Plaintiff’s filing (Doc. 8), to the extent it could be considered a motion, is

denied as plaintiff fails to allege any specific grounds for relief and fails to request any specific
remedy.

11
12
13
14

DATED: October 30, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
3