Thomas v. Roberts et al

Filing 33

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/18/2017 DENYING 28 Motion for Reconsideration. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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No. 2:16-cv-0724 CKD P

v.

ORDER

BRIAN ROBERTS, et al.,

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Defendants.

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Plaintiff has filed a motion asking that the court reconsider its June 1, 2017 order

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dismissing this action for plaintiff’s failure to file an amended complaint. Essentially, plaintiff

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argues that the amended complaint the court received on May 30, 2017 is timely. Plaintiff has

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consented to having all matters in this action before a United States Magistrate Judge. See 28

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U.S.C. § 636(c).

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As the court explained in its June 9, 2017 post-judgment order, the deadline for filing an

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amended complaint was May 17, 2017; plaintiff was granted 30 days from April 17, 2017 to file

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his amended complaint. In the amended complaint, plaintiff asserts he placed it in the legal mail

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collection system at the California Medical Facility on May 20, 2017. Court documents

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submitted by prisoners are generally deemed filed for the purposes of federal court deadlines on

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the day the document is given to a prison official for mailing. See Houston v. Lack, 487 U.S.

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266, 270-71 (1988). Even considering this “mailbox rule,” plaintiff’s amended complaint was

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three days late.1
For these reasons, and for the reasons stated in the court’s June 9, 2017 order, judgment

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will not be vacated.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s June 15, 2017 motion for

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reconsideration (ECF No. 28) is denied.

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Dated: July 18, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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thom0724.mfr

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Plaintiff argues he was entitled to extra time pursuant to Federal Rule of Civil Procedure 6(d)
which adds three days to any time period when a litigant must act “within a specified time after
being served.” However, plaintiff was not ordered to file his amended complaint within 30 days
of “service” of the April 17, 2017 order, he was ordered to file his amended complaint within 30
days of the “date” of the order.

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