Giraldes, Jr. v. Nicolai, et al.

Filing 43

ORDER signed by Magistrate Judge Allison Claire on 7/25/17 denying 42 Motion for Reconsideration. Defendants' counsel shall file a response to plaintiff's emergency motion for preliminary injunction 41 on or before 8/02/17. (Plummer, M) Modified on 7/26/2017 (Plummer, M).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY GIRALDES, JR., 12 13 14 No. 2:16-cv-0497 KJM AC P Plaintiff, v. ORDER ALICE NICOLAI, et al., 15 Defendants. 16 17 Larry Giraldes, Jr. (“plaintiff”) is a state prisoner proceeding pro se with this action 18 pursuant to 42 U.S.C. § 1983. He has filed a motion for an emergency preliminary injunction 19 (ECF No. 41) and a motion for reconsideration of the court’s screening order (ECF No. 42). The 20 court will deny his motion for reconsideration and direct defendants’ counsel to file a response to 21 the emergency motion within seven days. 22 I. Motion for Reconsideration 23 In his motion for reconsideration, plaintiff requests that the court reconsider its screening 24 dismissal of his Eighth Amendment medical deliberate indifference claims. ECF No. 42 at 3. 25 The court dismissed these claims with leave to amend on January 9, 2017. ECF No. 15. Plaintiff 26 elected not to file another amended complaint and to instead proceed immediately with the First 27 Amendment retaliation claims which form the basis of this action. See ECF No. 20. He was 28 specifically notified that, by doing so, his Eighth Amendment claims against the defendants 1 1 would remain dismissed without prejudice. ECF No. 15 at 11. 2 The court has reviewed plaintiff’s seventh amended complaint (ECF No. 14) and its 3 screening order (ECF No. 15) and sees no reason to deviate from its dismissal of plaintiff’s 4 Eighth Amendment deliberate indifference claims. The court notes that plaintiff has been 5 afforded numerous opportunities to state cognizable Eighth Amendment claims in this action; he 6 has filed no less than seven iterations of his complaint thus far. See ECF Nos. 1, 3, 8, 9, 10, 12, 7 13, 14. And, as set forth above, the court offered plaintiff an opportunity to file an eighth 8 amended complaint after it screened the seventh, but plaintiff elected to proceed only with the 9 claims that were determined to be cognizable. The Ninth Circuit has held that “[a] motion for 10 reconsideration should not be granted, absent highly unusual circumstances, unless the district 11 court is presented with newly discovered evidence, committed clear error, or if there is an 12 intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH 13 & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 14 656, 665 (9th Cir. 1999)). None of the relevant circumstances supporting a grant of 15 reconsideration apply here. 16 II. 17 The court has reviewed plaintiff’s emergency motion for preliminary injunction and, in Emergency Motion for Preliminary Injunction 18 light of the pressing issues alleged therein, will direct a response. Deputy Attorney General 19 William J. Douglas represents all of the defendants in this action. Accordingly, he is directed to 20 file and serve, on or before Wednesday, August 2, 2017, a response to plaintiff’s emergency 21 motion filed July 21, 2017, see ECF No. 41, concerning plaintiff’s lack of medication and access 22 to the law library. Plaintiff shall refrain from filing a reply - his motion adequately represents his 23 interests and time is of the essence. 24 Conclusion 25 It is THEREFORE ORDERED that: 26 1. 27 //// 28 Plaintiff’s motion for reconsideration (ECF No. 42) is DENIED; and //// 2 1 2 3 4 2. Defendants’ counsel shall file a response to plaintiff’s emergency motion for preliminary injunction (ECF No. 41) on or before Wednesday, August 2, 2017. IT IS SO ORDERED. DATED: July 25, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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