Clemons v. Mitchel et al

Filing 21

ORDER DENYING IN PART MOTION FOR RECONSIDERATION re 16 Request filed by John L. Clemons. Signed by Judge William Alsup on 11/15/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 11/21/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JOHN L. CLEMONS; CHANTELLE CLEMONS, No. C 10-3832 WHA (PR) ORDER DENYING IN PART MOTION FOR RECONSIDERATION 11 Plaintiff, For the Northern District of California United States District Court 10 12 v. 13 14 15 LAKE COUNTY SHERIFF RODNEY MITCHELL, SHERIFF CAPT. JAMES BAUMAN, SHERIFF SGT. MONREAL, SHERIFF SGT. FINDLEY, (Docket No. 16) 16 Defendants. 17 / 18 This is a pro se civil rights complaint under 42 U.S.C. 1983 filed by an inmate at the 19 Lake County Jail. Defendants’ motion to dismiss the complaint for failure to state a cognizable 20 claim for relief was granted. Plaintiff filed a motion for reconsideration, defendants filed an 21 opposition, and plaintiff filed a reply brief . 22 Rule 60(b) provides for reconsideration where one or more of the following is shown: 23 (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by 24 due diligence could not have been discovered before the court’s decision; (3) fraud by the 25 adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other 26 reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 27 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a showing 28 that the grounds justifying relief are extraordinary. Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Motions for reconsideration should not be 1 frequently made or freely granted; they are not a substitute for appeal or a means of attacking 2 some perceived error of the court. Ibid. 3 In the complaint, plaintiffs complained that on several occasions jail officials did not 4 allow plaintiff Chantelle Clemons, a minor, to visit her father, plaintiff John Clemons, unless 5 she was accompanied by a legal guardian or a parent. The claim was dismissed because 6 although a blanket restriction on family visits violates the First Amendment, a policy that only 7 allows children to visit when the child is accompanied by a parent or legal guardian is 8 constitutional. See Overton v. Bazzetta, 539 U. S. 126, 133 (2003). 9 Rather, plaintiffs contend that the dismissal was based upon a “misrepresentation” of the facts. They state, contrary to the allegations in the complaint, that Chantelle Clemons did in 11 For the Northern District of California United States District Court 10 fact have a legal custodial guardian with her when she was denied the visits. It is clear from 12 plaintiffs’ reply brief, just as it was clear from the papers filed in opposition to the motion to 13 dismiss, that the person accompanying Chantelle Clemons for the attempted visits was Tina 14 Roberts, plaintiff John Clemens’s sister. According to plaintiffs’ own papers, Roberts was not 15 appointed by as Chantelle Clemons’s legal guardian by a court. The state courts appointed a 16 different person, Shawna Lee Gottshall as the legal guardian. Plaintiff appears to state that he 17 designated Roberts as Chantelle Clemons’s guardian, but this does not make Roberts the legal 18 guardian. As Chantelle Clemons was not accompanied by either a parent or an actual legal 19 guardian when the visits were denied, plaintiffs’ visitation claims fail. 20 The motion for reconsideration presents no mistake, inadvertence, surprise, excusable 21 neglect, newly-discovered evidence, fraud by defendants, voiding or satisfaction of the 22 judgment, or any extraordinary circumstances justifying reconsideration of the dismissal of his 23 claims about visits, or of his other claims regarding property and mail. Plaintiffs’ disagreement 24 with the ruling that the claims should be dismissed is a matter for appeal, not for 25 reconsideration, and reconsideration of the dismissal of plaintiffs’ claims is denied. 26 It is noted, however, that plaintiffs make new allegations in the papers filed with the 27 motion for reconsideration suggesting that they may wish to pursue claims for retaliation or for 28 racial discrimination. Plaintiffs were not given leave to amend their complaint in the dismissal 2 1 order, but if they wish to make such claims, then within thirty days from the date this order is 2 filed they may file a motion for leave to file an amended complaint. They must attach to their 3 motion a proposed amended complaint that sets forth cognizable claims under Section 1983 for 4 the violation of federal law. The proposed amended complaint may not include any of the 5 dismissed claims or incorporate any material from the original complaint, and it must include 6 the caption and civil case number used in this order (Case No. 10-3832 WHA (PR)) as well as 7 the words PROPOSED AMENDED COMPLAINT on the first page. See Ferdik v. Bonzelet, 8 963 F.2d 1258, 1262 (9th Cir. 1992) (amended complaint supercedes original complaint). If the 9 proposed amended complaint states cognizable claims for relief, leave to file it will be granted 11 For the Northern District of California United States District Court 10 and this case will be reopened. In light of the foregoing, the motion for reconsideration of the dismissal order is DENIED 12 IN PART. 13 in the denial the motion in its entirety. 14 IT IS SO ORDERED. 15 Failure to file a proposed amended complaint in conformity with this order will result Dated: November 15 , 2011. 16 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 G:\PRO-SE\WHA\CR.10\CLEMONS3832.REC.wpd 28 3

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