Pina v. Lewis et al

Filing 36

ORDER Granting Motion to Reconsider; Re-Opening Case; Directing Plaintiff to File Amended Complaint by Judge Ronald M. Whyte. (jg, COURT STAFF) (Filed on 9/17/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PABLO P. PINA,

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Plaintiff,
v.
WARDEN LEWIS, et al.,
Defendants.

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No. C 10-3784 RMW (PR)
ORDER GRANTING MOTION TO
RECONSIDER; RE-OPENING
CASE; DIRECTING PLAINTIFF TO
FILE AMENDED COMPLAINT
(Docket Nos. 19, 21, 22)

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On August 25, 2010, plaintiff, a state prisoner proceeding pro se, filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983. On November 30, 2010, the court granted plaintiff’s

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application for leave to proceed in forma pauperis, and dismissed the complaint with leave to

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amend. That same day, the court directed plaintiff to file an amended complaint within thirty

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days from the filing date of the order. On January 27, 2011, having received no further

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communication from plaintiff, the court dismissed this action and closed the case. On August

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22, 2011, plaintiff wrote a letter to the court requesting the status of his case. On September 26,

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2011, plaintiff filed a motion for reconsideration, declaring that he never received any orders

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from this court after he received the clerk’s notice directing him to file an application for leave to

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proceed in forma pauperis. That is, he never received the November 30, 2010 order granting

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leave to proceed in forma pauperis, nor did he received the order dismissing the case with leave

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to amend. Plaintiff also asserts he never received the January 27, 2011 order of dismissal or
Order Granting Motion to Reconsider; Re-Opening Case; Directing Plaintiff to File Amended Complaint
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judgment. Thus, on November 17, 2011, the court granted plaintiff’s motion to reconsider, re-

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opened the case, and directed plaintiff to file an amended complaint within thirty days or face

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dismissal.

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On March 6, 2012, having received no further communication from plaintiff, the court

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again dismissed this action and closed the case. On April 18, 2012, plaintiff filed a motion to

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request reconsideration and assignment to another court. Again, plaintiff declared that, although

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he received the March 6, 2012 order of dismissal, he never received the November 17, 2011

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order directing him to file an amended complaint. In addition, the court does not have a

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certificate of service affixed to plaintiff’s November 17, 2011 order indicating that a copy of the

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order was sent to plaintiff.

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Motions for reconsideration should not be frequently made or freely granted; they are not

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a substitute for appeal or a means of attacking some perceived error of the court. See Twentieth

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Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). “‘[T]he major

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grounds that justify reconsideration involve an intervening change of controlling law, the

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availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’”

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Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (quoting

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United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)). “It has been used

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sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances prevented a party from taking timely action to prevent or correct an

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erroneous judgment.” Samish Indian Tribe v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005).

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(internal quotations omitted). Thus, to reopen a case under Rule 60(b)(6), a party must establish

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“both injury and circumstances beyond his control that prevented him from proceeding in a

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proper fashion.” Id. (internal quotations omitted); see, e.g., id. at 1160-61 (finding plaintiff

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entitled to relief under Rule 60(b)(6) because tribal non-recognition was an extraordinary

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circumstance beyond their control which prevented them from proceeding in proper fashion).

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“Although the application of Rule 60(b) is committed to the discretion of the district courts . . . ,

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as a general matter, Rule 60(b) is remedial in nature and must be liberally applied.” TCI Group

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Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir. 2001) (internal quotation marks and
Order Granting Motion to Reconsider; Re-Opening Case; Directing Plaintiff to File Amended Complaint
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ellipsis omitted).

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Accordingly, the court GRANTS plaintiff’s motion to reconsider, and RE-OPENS this

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case. The clerk is directed to mail plaintiff a copy of the November 30, 2010 order dismissing

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the case with leave to amend (docket no. 5), and pointing out the deficiencies within his original

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complaint. If plaintiff can cure the pleading deficiencies described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 10-3784 RMW

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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named defendant(s) was involved in each cause of action, what each

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defendant did, what effect this had on plaintiff and what right plaintiff alleges was violated.

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Plaintiff may not incorporate material from the prior complaint by reference. If plaintiff files an

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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an

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amended complaint within thirty days and in accordance with this order will result in a

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dismissal of this action.

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Plaintiff is advised that an amended complaint supersedes the original complaint. “[A]

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plaintiff waives all causes of action alleged in the original complaint which are not alleged in the

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amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do

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so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge
Order Granting Motion to Reconsider; Order Re-Opening Case; Directing Plaintiff to File Amended Complaint
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

PABLO PINA,

Case Number: CV10-03784 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
LEWIS et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 17, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Pablo P. Pina D-28079
Pelican Bay State Prison
P. O. Box 7500
D-2; #122 SHU
Crescent City, CA 95531
Dated: September 17, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk