DEBOSE v. STATE OF CALIFORNIA et al

Filing 22

ORDER DENYING MOTION FOR RECONSIDERATION 21 (Illston, Susan) (Filed on 10/14/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD R. DEBOSE,

Case No. 14-cv-05268-SI

Plaintiff,
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v.

ORDER DENYING MOTION FOR
RECONSIDERATION

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STATE OF CALIFORNIA, et al.,

Re: Dkt. No. 21

Defendants.

United States District Court
Northern District of California

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Plaintiff has moved for reconsideration of the June 24, 2015 order of dismissal.

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To evaluate plaintiff's motion, it is necessary to recount the lengthy wait for an amended

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complaint that occurred before the court dismissed the action. The complaint in this pro se

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prisoner's civil rights action was dismissed with leave to amend on February 25, 2015 because,

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among other things, the complaint failed to provide a short and plain statement of the claim

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showing that the pleader is entitled to relief. Dkt. No. 12. The action was originally dismissed on

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April 29, 2015 because the amended complaint had not been filed by the March 27, 2015 deadline.

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Plaintiff then moved for reconsideration of that order of dismissal, claiming that he had sent in a

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request for extension of time to file his amended complaint (although the court never received it).

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The court granted the motion for reconsideration and reopened the action on May 26, 2015,

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directing plaintiff to file an amended complaint no later than June 22, 2015, and warning him not

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to expect any further extensions of the deadline. See Dkt. No. 17 at 2. On June 24, 2015, the

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court denied plaintiff's latest request for another extension of the deadline to file his amended

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complaint, and dismissed the action. Dkt. No. 19. The action was dismissed because plaintiff had

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failed to file an amended complaint providing a short and plain statement of the claim showing

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that the pleader is entitled to relief. Id.

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A party may move to alter or amend a judgment in a motion filed no later than 28 days

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after entry of judgment. See Fed. R. Civ. P. 59(e). A motion for reconsideration under Federal

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Rule of Civil Procedure 59(e) "'should not be granted, absent highly unusual circumstances, unless

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the district court is presented with newly discovered evidence, committed clear error, or if there is

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an intervening change in the law."' McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)

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(citation omitted) (en banc).
Plaintiff argues in his motion for reconsideration that the court erred in dismissing the

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action because, in denying his June 22, 2015 request for a third extension of the deadline, the court

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did not consider a medical reason that he had mentioned five months earlier in a request for

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extension of a deadline to file a different document - but which he did not mention in requesting

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United States District Court
Northern District of California

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the third extension of time. The June 22, 2015 motion for additional time did not mention any

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medical problems and sought additional time because plaintiff had been put in administrative

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segregation and been separated from his property. The court did not err in not considering an

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argument not made in the June 22, 2015 request for an extension of the deadline to file an

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amended complaint. The court is not obliged to scour the record to find arguments a litigant has

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not made in a request for an extension of a deadline. Moreover, by the time plaintiff made that

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June 22, 12015 request, he had already had more than one hundred days to prepare his amended

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complaint; even if, as plaintiff states, he could not sit for extended amounts of time, he could have

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finished the amended complaint many weeks earlier with just an hour of work per day on it.

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Plaintiff also argues that dismissal was improper because his program status changed on June 12,

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2015, but this does not warrant setting aside the judgment because plaintiff had many months

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before then to prepare his amended complaint and had been warned not to expect a further

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extension of the deadline. In fact, as of the July 8, 2015 date of his declaration in support of his

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motion for reconsideration, plaintiff still was not finished with his amended complaint. See Dkt.

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No. 21 at 4. There is no reason not to expect that yet another request for extension of the deadline

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would be made if the request was granted. The motion for reconsideration is DENIED. Dkt. No.

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21.

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The court clarifies that the dismissal of this action is without prejudice. The dismissal of
this action will not count as a dismissal for purposes of 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
Dated: October 14, 2015

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________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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