Edmonds v. Alameda County District Attorney et al

Filing 17

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT Amended Complaint due by 5/9/2013.. Signed by Judge Lucy H. Koh on 4/8/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/9/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 CRAIG A. EDMONDS, JR., 12 Plaintiff, 13 v. 14 15 ALAMEDA COUNTY DISTRICT ATTORNEY, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) No. C 11-4320 LHK (PR) ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT 17 18 On August 31, 2011, Plaintiff, a state prisoner proceeding pro se, filed a federal civil 19 rights complaint, pursuant to 42 U.S.C. § 1983. On October 21, 2011, the Court dismissed the 20 complaint with leave to amend, and ordered Plaintiff to file an amended complaint within thirty 21 days, or face dismissal of this action. On November 3, 2011, the order was returned to the Court 22 as undeliverable because Plaintiff was no longer in custody. On December 6, 2011, the Court 23 directed Plaintiff to file a notice of intent to prosecute and provide a current address. That mail 24 was returned as undeliverable on December 13, 2011. On January 6, 2012, the Court dismissed 25 this action without prejudice and entered judgment. These final orders were returned as 26 undeliverable on January 18, 2012. 27 28 Close to one year later, on December 11, 2012, Plaintiff filed a letter requesting status of his case. (Docket No. 14.) Then, on January 16, 2013, Plaintiff filed a motion to set aside the Order Directing Plaintiff to Filed Amended Complaint G:\PRO-SE\SJ.LHK\CR.11\Edmonds320recon.wpd 1 order of dismissal, which this Court construes as a motion for reconsideration. In his motion, 2 Plaintiff states that, on October 21, 2011, he was transferred to San Quentin State Prison, and 3 then to San Mateo County, and back to San Quentin State Prison, where he currently is 4 incarcerated. Plaintiff alleges that he has not received any forwarded mail. 5 Rule 60(b) provides for reconsideration where one or more of the following is shown: (1) 6 mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by 7 due diligence could not have been discovered before the court’s decision; (3) fraud by the 8 adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason 9 justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th 10 Cir.1993). Such a motion must be made within a “reasonable time,” and as to grounds for relief 11 (1) - (3), no later than one year after the judgment was entered. See Fed. R. Civ. P. 60(b). 12 “Although the application of Rule 60(b) is committed to the discretion of the district courts . . . , 13 as a general matter, Rule 60(b) is remedial in nature and must be liberally applied.” TCI Group 14 Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir. 2001) (internal quotation marks and 15 ellipsis omitted). 16 The Court will defer ruling on Plaintiff’s motion for reconsideration unless and until he 17 files an amended complaint within thirty days, as the Court previously instructed on January 6, 18 2012. To aid Plaintiff in this endeavor, the Clerk shall mail Plaintiff a courtesy copy of the 19 Court’s January 6, 2012 order dismissing the complaint with leave to amend. Should Plaintiff 20 comply with this order in a timely manner, upon receipt of Plaintiff’s amended complaint, the 21 Court will grant Plaintiff’s motion for reconsideration and re-open this action. If, however, 22 Plaintiff does not file an amended complaint within thirty days of the filing date of this order, 23 this case will remain closed. 24 25 26 IT IS SO ORDERED. Dated: 4/8/13 LUCY H. KOH United States District Judge 27 28 Order Directing Plaintiff to Filed Amended Complaint G:\PRO-SE\SJ.LHK\CR.11\Edmonds320recon.wpd 2

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