Ruiz v. Kate et al

Filing 16

ORDER by Judge Marilyn Hall Patel finding as moot plaintiff's motions 8 9 , and denying motions 10 13 (Attachments: # 1 CertServ) (awb, COURT STAFF) (Filed on 4/30/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

RUBEN J. RUIZ, Plaintiff, v. MATHEW CATE, etc.; et al., Defendants. /

No. C 09-2968 MHP (pr) ORDER

This action was dismissed and judgment entered on February 10, 2010. Thereafter, plaintiff filed several motions which the court now addresses. Plaintiff's motion to issue order of summons and motion to amend complaint are DENIED as moot because, at the time they were filed, judgment already had been entered. (Docket # 8, # 9.) After a final judgment has been entered, the district court may consider a Rule 15 motion to amend only if the judgment is first reopened pursuant to a motion under Federal Rule of Civil Procedure 59 or 60. See Lindauer v. Rogers, 96 F.3d 1355, 1357 (9th Cir. 1996). This is a high hurdle to overcome, as judgment is not properly reopened "'absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir. 2001) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Plaintiff's filing does not suggest that he could meet this high standard. See Motion To Amend Complaint (docket # 9), p. 1 (proposed second amended complaint "removes and consolidated numerous causes of action from sixteen to nine causes of action; correcting misnumbering of paragraphs on pages 3 and 4;

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and describes in more detail, is more organized and more clearly drafted.") Plaintiff's motion for leave to proceed in forma pauperis on appeal is DENIED. (Docket # 10, # 13.) The plaintiff did not comply with Federal Rule of Appellate Procedure 24(a)(1). Specifically, he did not attach an affidavit that shows his inability to pay in the detail prescribed in Form 4 and did not attach a certified prisoner trust account statement for the last six months. Petitioner may file a new in forma pauperis application in the U.S. Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5). IT IS SO ORDERED. Dated: April 29, 2010 _______________________ Marilyn Hall Patel United States District Judge

2