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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN L. CLEMONS; CHANTELLE
CLEMONS,

No. C 10-3832 WHA (PR)
ORDER DENYING IN PART
MOTION FOR RECONSIDERATION

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Plaintiff,
For the Northern District of California

United States District Court

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v.
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LAKE COUNTY SHERIFF RODNEY
MITCHELL, SHERIFF CAPT.
JAMES BAUMAN, SHERIFF SGT.
MONREAL, SHERIFF SGT.
FINDLEY,

(Docket No. 16)

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Defendants.
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This is a pro se civil rights complaint under 42 U.S.C. 1983 filed by an inmate at the
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Lake County Jail. Defendants’ motion to dismiss the complaint for failure to state a cognizable
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claim for relief was granted. Plaintiff filed a motion for reconsideration, defendants filed an
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opposition, and plaintiff filed a reply brief .
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Rule 60(b) provides for reconsideration where one or more of the following is shown:
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(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by
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due diligence could not have been discovered before the court’s decision; (3) fraud by the
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adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other
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reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255,
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1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a showing
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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

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frequently made or freely granted; they are not a substitute for appeal or a means of attacking

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some perceived error of the court. Ibid.

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In the complaint, plaintiffs complained that on several occasions jail officials did not

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allow plaintiff Chantelle Clemons, a minor, to visit her father, plaintiff John Clemons, unless

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she was accompanied by a legal guardian or a parent. The claim was dismissed because

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although a blanket restriction on family visits violates the First Amendment, a policy that only

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allows children to visit when the child is accompanied by a parent or legal guardian is

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constitutional. See Overton v. Bazzetta, 539 U. S. 126, 133 (2003).

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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

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For the Northern District of California

United States District Court

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fact have a legal custodial guardian with her when she was denied the visits. It is clear from

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plaintiffs’ reply brief, just as it was clear from the papers filed in opposition to the motion to

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dismiss, that the person accompanying Chantelle Clemons for the attempted visits was Tina

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Roberts, plaintiff John Clemens’s sister. According to plaintiffs’ own papers, Roberts was not

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appointed by as Chantelle Clemons’s legal guardian by a court. The state courts appointed a

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different person, Shawna Lee Gottshall as the legal guardian. Plaintiff appears to state that he

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designated Roberts as Chantelle Clemons’s guardian, but this does not make Roberts the legal

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guardian. As Chantelle Clemons was not accompanied by either a parent or an actual legal

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guardian when the visits were denied, plaintiffs’ visitation claims fail.

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The motion for reconsideration presents no mistake, inadvertence, surprise, excusable

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neglect, newly-discovered evidence, fraud by defendants, voiding or satisfaction of the

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judgment, or any extraordinary circumstances justifying reconsideration of the dismissal of his

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claims about visits, or of his other claims regarding property and mail. Plaintiffs’ disagreement

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with the ruling that the claims should be dismissed is a matter for appeal, not for

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reconsideration, and reconsideration of the dismissal of plaintiffs’ claims is denied.

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It is noted, however, that plaintiffs make new allegations in the papers filed with the

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motion for reconsideration suggesting that they may wish to pursue claims for retaliation or for

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racial discrimination. Plaintiffs were not given leave to amend their complaint in the dismissal
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order, but if they wish to make such claims, then within thirty days from the date this order is

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filed they may file a motion for leave to file an amended complaint. They must attach to their

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motion a proposed amended complaint that sets forth cognizable claims under Section 1983 for

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the violation of federal law. The proposed amended complaint may not include any of the

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dismissed claims or incorporate any material from the original complaint, and it must include

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the caption and civil case number used in this order (Case No. 10-3832 WHA (PR)) as well as

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the words PROPOSED AMENDED COMPLAINT on the first page. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1262 (9th Cir. 1992) (amended complaint supercedes original complaint). If the

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proposed amended complaint states cognizable claims for relief, leave to file it will be granted

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For the Northern District of California

United States District Court

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and this case will be reopened.
In light of the foregoing, the motion for reconsideration of the dismissal order is DENIED

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IN PART.

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in the denial the motion in its entirety.

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IT IS SO ORDERED.

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Failure to file a proposed amended complaint in conformity with this order will result

Dated: November

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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