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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY GIRALDES, JR.,

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No. 2:16-cv-0497 KJM AC P

Plaintiff,
v.

ORDER

ALICE NICOLAI, et al.,

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Defendants.

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Larry Giraldes, Jr. (“plaintiff”) is a state prisoner proceeding pro se with this action

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pursuant to 42 U.S.C. § 1983. He has filed a motion for an emergency preliminary injunction

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(ECF No. 41) and a motion for reconsideration of the court’s screening order (ECF No. 42). The

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court will deny his motion for reconsideration and direct defendants’ counsel to file a response to

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the emergency motion within seven days.

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I.

Motion for Reconsideration

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In his motion for reconsideration, plaintiff requests that the court reconsider its screening

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dismissal of his Eighth Amendment medical deliberate indifference claims. ECF No. 42 at 3.

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The court dismissed these claims with leave to amend on January 9, 2017. ECF No. 15. Plaintiff

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elected not to file another amended complaint and to instead proceed immediately with the First

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Amendment retaliation claims which form the basis of this action. See ECF No. 20. He was

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specifically notified that, by doing so, his Eighth Amendment claims against the defendants
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would remain dismissed without prejudice. ECF No. 15 at 11.

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The court has reviewed plaintiff’s seventh amended complaint (ECF No. 14) and its

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screening order (ECF No. 15) and sees no reason to deviate from its dismissal of plaintiff’s

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Eighth Amendment deliberate indifference claims. The court notes that plaintiff has been

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afforded numerous opportunities to state cognizable Eighth Amendment claims in this action; he

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has filed no less than seven iterations of his complaint thus far. See ECF Nos. 1, 3, 8, 9, 10, 12,

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13, 14. And, as set forth above, the court offered plaintiff an opportunity to file an eighth

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amended complaint after it screened the seventh, but plaintiff elected to proceed only with the

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claims that were determined to be cognizable. The Ninth Circuit has held that “[a] motion for

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reconsideration should not be granted, absent highly unusual circumstances, unless the district

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court is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH

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& Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d

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656, 665 (9th Cir. 1999)). None of the relevant circumstances supporting a grant of

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reconsideration apply here.

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II.

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The court has reviewed plaintiff’s emergency motion for preliminary injunction and, in

Emergency Motion for Preliminary Injunction

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light of the pressing issues alleged therein, will direct a response. Deputy Attorney General

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William J. Douglas represents all of the defendants in this action. Accordingly, he is directed to

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file and serve, on or before Wednesday, August 2, 2017, a response to plaintiff’s emergency

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motion filed July 21, 2017, see ECF No. 41, concerning plaintiff’s lack of medication and access

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to the law library. Plaintiff shall refrain from filing a reply - his motion adequately represents his

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interests and time is of the essence.

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Conclusion

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It is THEREFORE ORDERED that:

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1.

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Plaintiff’s motion for reconsideration (ECF No. 42) is DENIED; and

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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

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