Smith v. Hart et al

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/4/2014 DENYING plaintiff's 14 motion for reconsideration. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREG SMITH,

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No. 2:14-cv-1832 CKD P
Plaintiff,

v.

ORDER

TIM HART, et al.,
Defendants.

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On December 1, 2014, the court received a motion from plaintiff asking that the court

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reconsider the November 20, 2014 order dismissing this action for plaintiff’s failure to timely-file

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an amended complaint. A district court may reconsider a ruling under either Federal Rule of

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Civil Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc.,

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5 F.3d 1255, 1262 (9th Cir. 1993). “Reconsideration is appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. at 1263. On

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August 13, 2014, plaintiff consented to have all matters in this action before a United States

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Magistrate Judge. See 28 U.S.C. § 636(c).

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On October 10, 2014, the court dismissed plaintiff’s complaint with leave to file an

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amended complaint within 30 days of service of the order. Plaintiff was warned that failure to

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file an amended complaint in compliance with the order would result in dismissal.
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Under Rule 6(d) of the Federal Rules of Civil Procedure, an additional 3 days is added to

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the time within which a party must act, if commencement of the time within which a party must

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act begins with service of a document. Also, a document submitted by a prisoner is generally

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deemed filed in court the day the document is submitted to prison officials for mailing. See

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Houston v. Lack, 487 U.S. 266, 270-71 (1988). Accordingly, plaintiff had 33 days following

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October 10, 2014, until November 12, 2014, within which to submit his amended complaint to

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prison officials for mailing.

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Plaintiff’s amended complaint was received by the court the day judgment was entered.
In the amended complaint, plaintiff asserts under the penalty of perjury that he gave his amended

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complaint to prison officials for mailing on November 13, 2014, one day late. Accordingly,

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plaintiff’s argument that his amended complaint was timely-filed must be rejected and his motion

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for reconsideration denied.

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Nonetheless, the court has reviewed the amended complaint filed by plaintiff and finds

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that it does not state a claim upon which relief can be granted as the deficiencies in plaintiff’s

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original complaint, identified in the court’s October 10, 2014 order, have not been cured.

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Therefore, even if the court were to grant plaintiff’s motion for reconsideration, the amended

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complaint would be screened out pursuant to 28 U.S.C. § 1915A.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s December 1, 2014 motion for

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reconsideration (ECF No. 14) is denied.

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Dated: December 4, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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carr0215.mfr

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