Gifford v. Puckett, et al

Filing 64

ORDER signed by District Judge Kimberly J. Mueller on 5/19/2017 DENYING 61 Motion for Reconsideration. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGER GIFFORD
Plaintiff,

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v.

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No. 2:16-cv-0955 KJM GGH

ORDER

ROBERT PUCKETT, SR., et al.,
Defendants.

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Plaintiff seeks reconsideration of the magistrate judge’s order of April 7, 20171 which,

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inter alia, struck the Second Amended Complaint as being in violation of the previously assigned
magistrate judge’s order that any Second Amended Complaint not exceed 25 pages. The

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chronology of court events leading to the April 7 order striking the complaint is as follows:
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5/26/16

Previously assigned magistrate judge dismisses plaintiff’s original
complaint with thirty days’ leave to amend and information regarding the
filing of a proper complaint. ECF No. 3

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6/15/16

Plaintiff files First Amended Complaint. ECF No. 5.

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6/20/16

Previously assigned magistrate judge dismisses First Amended Complaint
with leave to amend, requiring that any amended complaint not exceed 25
pages. ECF No. 6.

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Plaintiff captions his Request for Reconsideration as seeking review of the “April 7” order, but
in the text references the “April 6” order. Because no order was entered on April 6, the court
construes the request as directed to the April 7 order.
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8/24/16

In addressing plaintiff’s “objection” to her June 20 order, previously
assigned magistrate judge once again grants leave to amend, requiring that
any amended complaint not exceed 25 pages. ECF No. 6.

12/5/16

Previously assigned magistrate judge issues order granting plaintiff’s
request that his in forma pauperis (IFP) status be withdrawn, and providing
another 30 days for filing an amended complaint; 25 page restriction not
modified by order. ECF Nos. 10, 11.

2/1/17

After an additional extension of time to do so, ECF No. 13, plaintiff files
his Second Amended Complaint, comprising 148 pages. ECF No. 14

3/29/17

The assigned district judge relates this case to the Harrell case, case no.
2:15-cv-1495, without consolidating the cases.

4/7/17

The assigned magistrate judge strikes the Second Amended Complaint as
not compliant with the court’s previously ordered page limitation.

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In his request for reconsideration, plaintiff expresses his belief that the previously

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assigned magistrate judge “accepted” the Second Amended Complaint because the Clerk of the

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Court entered a Scheduling Order under Eastern District of California Local Rule 240, ECF No.

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16, and issued Summons, ECF No. 17. The Clerk’s actions, however, are purely ministerial and

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triggered by the filing of the complaint alone; they are not the equivalent of an order issued by a
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magistrate judge of this court. The ministerial actions of the Clerk did not vacate the magistrate

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judge’s orders of June 20 and August 24, 2016, modified on December 5, 2016 only as to the time

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for filing of an amended complaint. Plaintiff did not comply with the substantive terms of the

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June 20 and August 24 orders.

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A magistrate judge’s order will be upheld unless it is clearly erroneous or contrary to law.
28 U.S.C. § 636 (b)(1)(A). The April 7 order is not clearly erroneous or contrary to law.

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In light of the foregoing, IT IS THEREFORE ORDERED that:

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Plaintiff’s Request for Reconsideration of the April 7, 2017 Order, ECF No. 61, is

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DENIED.

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DATED: May 19, 2017.
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UNITED STATES DISTRICT JUDGE

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