Rodriguez v. Beard et al

Filing 53

ORDER signed by Chief Judge Morrison C. England, Jr. on 7/8/2015 ORDERING 48 Plaintiff's motion for amendment, brought pursuant to FRCP 60(b), is GRANTED; the 5/19/2015 order 47 granting plaintiff's motion to voluntarily dismiss this ac tion is VACATED; the Clerk of the Court is directed to REOPEN this action; Plaintiff's claims against defendants Foulk and St. Andre are DISMISSED; this action will proceed on plaintiff's retaliation claim against defendant Matis; the Clerk of the Court is directed to serve a copy of this order on the 9th Circuit Court of Appeals. CASE REOPNED 49 (cc: USCA #15-16263)(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEAN C. RODRIGUEZ,

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No. 2: 14-cv-1049 MCE KJN P

Plaintiff,
v.

ORDER

JEFFREY BEARD, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for amendment pursuant to

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Federal Rule of Civil Procedure 60(b). (ECF No. 48.) In this motion, plaintiff requests that the

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court amend the May 19, 2015 order dismissing this action. For the reasons stated herein,

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plaintiff’s motion is granted.

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On April 3, 2015, the magistrate judge recommended that defendants’ motion to sever be

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granted. (ECF No. 45.) The magistrate judge recommended that the retaliation claim against

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defendant Matis be dismissed, and that this action proceed solely on the claims against defendants

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Foulk and St. Andre. The findings and recommendations noted that if plaintiff preferred to

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proceed solely on his retaliation claim against defendant Matis (as opposed to proceeding solely

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on his race-based lockdown claim against defendants Foulk and St. Andre), plaintiff could notify

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the court of his preference in his objections.
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On April 14, 2015, plaintiff filed objections to the findings and recommendations. (ECF

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No. 46.) The court understood plaintiff’s objections to request that the court dismiss all of

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plaintiff’s claims. Accordingly, the undersigned construed plaintiff’s objections to contain a

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Motion for Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a). (ECF No.

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47.) On May 19, 2015, the undersigned granted plaintiff’s motion for voluntary dismissal and

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dismissed this action without prejudice. (Id.)

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On May 29, 2015, plaintiff filed the pending motion. (ECF No. 48.) In this motion,

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plaintiff states that in his objections, he meant to request only that his claims against defendants

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Foulk and St. Andre alleging race based lockdowns be dismissed. Plaintiff states that he did not

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intend to request dismissal of the entire action. Good cause appearing, plaintiff’s motion for

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relief is granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s May 29, 2015 motion for amendment (ECF No. 48), brought pursuant to

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Federal Rule of Civil Procedure 60(b), is granted;
2. The May 19, 2015 order (ECF No. 47) granting plaintiff’s motion to voluntarily
dismiss this action is vacated; the Clerk of the Court is directed to reopen this action;
3. Plaintiff’s claims against defendants Foulk and St. Andre are dismissed; this action will
proceed on plaintiff’s retaliation claim against defendant Matis;
4. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit

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Court of Appeals.

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Dated: July 8, 2015

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