Downs v. Balls, et al

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 9/23/2015 ORDERING plaintiff's objection, construed as a 16 request for reconsideration of the court's 8/11/2015 order, is DENIED as untimely; plaintiff's 17 request for an order is DENIED; plaintiff is GRANTED 21 days to file an amended complaint; and the Clerk shall send plaintiff the form for filing a civil rights complaint. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GREGORY DOWNS,

12
13
14
15

No. 2:15-cv-0507 KJN P

Plaintiff,
v.

ORDER

LORI BALLS, ET AL.,
Defendants.

16
17

Plaintiff is a state prisoner, proceeding without counsel. On April 22, 2015, plaintiff’s

18

complaint was dismissed, and plaintiff was granted thirty days in which to file an amended

19

complaint. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C.

20

§ 636(c). On May 22, 2015, and June 30, 2015, plaintiff was granted extensions of time in which

21

to amend. Subsequently, plaintiff filed a motion, rather than an amended complaint, which was

22

denied on August 11, 2015. Plaintiff was given one final opportunity in which to file an amended

23

complaint. Plaintiff filed an objection, which was signed on September 9, 2015, and which the

24

court construes as a request for reconsideration of the August 11, 2015 order.

25

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

26

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

27

of the ruling on the parties.” Id. Under this rule, the request for reconsideration was due on or

28

before August 25, 2015. Thus, plaintiff’s September 9, 2015 request is untimely and is denied.

1

On September 17, 2015, plaintiff filed a document entitled “Request for Order.” (ECF

2

No. 17.) In this request, plaintiff appears to contend that the Board of Prison Hearings and the

3

lawyers appointed to represent handicapped inmates are violating the order and stipulation

4

entered in the Armstrong v. Davis class action addressing inmates whose rights under the

5

Americans with Disabilities Act (“ADA”) were allegedly violated. (ECF No. 17.) To the extent

6

plaintiff challenges the systemic provision of ADA protections pursuant to the Armstrong class

7

action, he must do so through the class representative, class counsel, or special master in the class

8

action, and not in his own, separate case. Cf. McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir.

9

1991) (holding individual suits for injunctive and equitable relief cannot be brought where class

10

action pending); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir.1988) (en banc)

11

(“Individual members of the class and other prisoners may assert any equitable or declaratory

12

claims they have, but they must do so by urging further actions through the class representative

13

and attorney, including contempt proceedings, or by intervention in the class action.”). If plaintiff

14

seeks to challenge the violation of Armstrong in connection with his own parole hearing, plaintiff

15

must include such challenge in his amended complaint, specifically identifying the date of the

16

parole hearing at issue, and describing how his rights under Armstrong and the ADA were

17

violated. Thus, plaintiff’s request for order is denied.

18

In an abundance of caution, plaintiff is granted one last opportunity to file an amended

19

complaint on the form provided by the Clerk of the Court, and that complies with this court’s

20

April 22, 2015 order. Failure to timely comply with this order will result in the dismissal of this

21

action.

22

IT IS HEREBY ORDERED that:

23

1. Plaintiff’s objection (ECF No. 16), construed as a request for reconsideration of the

24

court’s August 11, 2015 order, is denied as untimely;

25

2. Plaintiff’s request for order (ECF No. 17) is denied;

26

3. Plaintiff is granted twenty-one days from the date of this order in which to file an

27

amended complaint on the form provided; and

28

////
2

1

4. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights

2

complaint by a prisoner.

3

Dated: September 23, 2015

4
5
/down0507.851

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3