Haraszewski v. Brannan et al

Filing 13

ORDER denying plaintiff's 12 Motion for Reconsideration of the Court's April 20, Order; Plaintiff is granted a thirty (30) day extension of time in which to file a First Amended Complaint that complies with the April 20, 2010 Order; Signed by Judge Larry Alan Burns on 8/24/10. (All non-registered users served via U.S. Mail Service)(kaj)

- P C L Haraszewski v. Brannan et al

D o c . 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O n March 12, 2010, Plaintiff, Hubert Dymitr Haraszewski, an inmate currently incarcerated at Kern Valley State Prison and proceeding pro se, filed a civil rights action p u rs u a n t to 42 U.S.C. § 1983. On April 20, 2010, the Court granted Plaintiff's Motion to L IS A BRANNAN, et al., Defendants. vs. H U B E R T DYMITR HARASZEWSKI C D C R #AC-2622, P la in tif f , C iv il No. 1 0 c v 0 5 4 6 LAB (PCL)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF CALIFORNIA

O R D E R DENYING PLAINTIFF'S M O T I O N FOR R E C O N S I D E R A T I O N AND G R A N T I N G EXTENSION OF TIME T O FILE FIRST AMENDED C O M P L A IN T [D o c . No. 12]

P r o c e ed In Forma Pauperis ("IFP") and dismissed Plaintiff's Complaint for failing to state a c la im pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Apr. 20, 2010 Order at 5-6. P la in tif f was granted leave to file a First Amended Complaint in order to correct the deficiencies o f pleading identified by the Court. Id. P la in tif f then requested, and received, two extensions of time to file his First Amended C o m p la in t which was due to be filed no later than August, 9, 2010. See June 28, 2010 Order at -1-

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3 . However, instead of filing a First Amended Complaint, Plaintiff has filed a "Motion for R ec o n sid e ratio n " [Doc. No. 12]. I. P la in t iff's Motion for Reconsideration A. S t a n d a r d of Review

T h e Federal Rules of Civil Procedure do not expressly provide for motions for re c o n sid e ra tio n .1 However, a motion for reconsideration may be construed as a motion to alter o r amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U .S . 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1 9 9 4 ). Under Rule 60, a motion for "relief from a final judgment, order or proceeding" may b e filed within a "reasonable time," but usually must be filed "no more than a year after the entry o f the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c). Reconsideration u n d e r Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable n e g le c t; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the ju d g m e n t has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b). B. D is c u s s io n

In Plaintiff's original Complaint, he alleged, in part, that his constitutional rights were v io la te d when Defendants instigated a search of his cell while he was housed as a pre-trial d e ta in e e in the Vista Detention Facility. See Compl. at 3-5. Plaintiff then refers to a Court h e a rin g related to his criminal proceedings in which the validity of this search, and the material s e iz e d as a result, was discussed. Id. at 4. B a se d on the facts alleged, it appears that Plaintiff is challenging the validity of his crim inal conviction that was based, in part, on these alleged "illegal" searches. Thus, The Court fo u n d that his claims for monetary damages based on his Fourth Amendment search and seizure c la im s were not yet cognizable pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). See Apr. However, Local Rule 7.1(i) does permit motions for reconsideration. Under Local Rule 7.1(i)(1), a party may apply for reconsideration "[w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part...." S.D. CA L. CIVLR 7.1(i). The party seeking reconsideration must show "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." Id. Local Rule 7.1(i)(2), however, only permits motions for reconsideration within "twenty -eight (28) days after the entry of the ruling, order or judgment sought to be reconsidered."
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2 0 , 2010 Order at 4. In his Motion for Reconsideration, Plaintiff claims that the search does not im p lic a te the invalidity of his conviction because the "search turned up no evidence that was d ire c tly used in my prosecution." See Pl.'s Mot. at 2. This is not clear from Plaintiff's C o m p la in t and if he chooses to file an Amended Complaint, he must be sufficiently clear that th e alleged constitutional rights that were violated by the search have nothing to do with his c rim in a l trial or conviction. If the search is related to his criminal conviction, as the Court stated in its previous Order, he must be able to show that his "criminal charges have been dismissed o r the conviction overturned." See Apr. 20, 2010 Order at 4 (citing Harvey v. Waldron, 210 F.3d 1 0 0 8 , 1015 (9th Cir. 2000). In addition, Plaintiff acknowledges the other deficiencies of pleading identified by the C o u rt, along with indicating that he wishes to add additional causes of action. If Plaintiff

w ish e s to proceed in this action, he must simply file an Amended Complaint in compliance with the Court's April 20, 2010 Order. A c c o rd in g ly, the Court finds that Plaintiff has provided no newly discovered evidence, h a s failed to show clear error or that the Court rendered a manifestly unjust decision, and has f u rth e r failed to identify any intervening changes in controlling law that would demand re c o n s id e ra tio n of the Court's April 20, 2010 Order. II. C o n c lu s io n and Order In light of the foregoing, the Court hereby DENIES Plaintiff's Motion for R e c o n sid e ra tio n [Doc. No. 12] of the Court's April 20, Order. Plaintiff is granted a thirty (30) d a y extension of time in which to file a First Amended Complaint that complies with the April 2 0 , 2010 Order. I T IS SO ORDERED. D A T E D : August 24, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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