Heilman v. Cook et al

Filing 8

ORDER (1) Denying Motion For Reconsideration; (2) Granting Motion For Extension Of Time To File First Amended Complaint: Plaintiff is granted sixty (60) days leave from the date this Order is entered in which to file a First Amended Complaint. The Cl erk of Court is directed to mail Plaintiff a blank court approved civil rights complaint form. Signed by Judge Gonzalo P. Curiel on 7/25/2014. (All non-registered users served via U.S. Mail Service; a blank 1983 First Amended Complaint form also was mailed to plaintiff.) (mdc)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 THOMAS JOHN HEILMAN, CDCR #H-76785 Plaintiff, 13 14 (1) DENYING MOTION FOR RECONSIDERATION; vs. 15 16 17 18 19 Civil 14cv1412 GPC (JMA) No. ORDER: J. COOK; J. CHAU; R. DAVIS; R. RUSSELL; MR. PHAM; K. LACORUM; D. DONOGHUE; J. WALKER; S. NIZAMANI, Defendants. (2) GRANTING MOTION FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT 20 21 Plaintiff, currently housed at the California Men’s Colony located in San Luis 22 Obispo, California, and proceeding pro se, filed a civil rights action pursuant to 42 23 U.S.C. § 1983. (ECF No. 1.) On June 18, 2014, this Court granted Plaintiff’s Motion 24 to Proceed In Forma Pauperis (“IFP”) and sua sponte dismissed his Complaint as 25 frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A. (ECF No. 4.) 26 granted leave to file an amended pleading in order to correct the deficiencies of pleading 27 identified in the Court’s Order. (Id. at 5-6.) 28 Reconsideration of the June 18, 2014 Order. (ECF No. 7.) 1 Plaintiff was Plaintiff has now filed a Motion for 14cv1412 GPC (JMA) 1 I. Motion for Reconsideration 2 The Federal Rules of Civil Procedure do not expressly provide for motions for 3 reconsideration.1 However, a motion for reconsideration may be construed as a motion 4 to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & 5 Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 6 1306, 1311 (9th Cir. 1994). Under Rule 60, a motion for “relief from a final judgment, 7 order or proceeding” may be filed within a “reasonable time,” but usually must be filed 8 “no more than a year after the entry of the judgment or order or the date of the 9 proceeding.” FED.R.CIV.P. 60(c). Reconsideration under Rule 60 may be granted in 10 the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly 11 discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has 12 been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b). 13 Plaintiff objects to the Court’s Order finding that the claims in this action were 14 identical to two previous actions filed by Plaintiff. A court “may take notice of 15 proceedings in other courts, both within and without the federal judicial system, if those 16 proceedings have a direct relation to matters at issue.” United States ex rel. Robinson 17 Rancherita Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). In the 18 first action referenced by the Court in the June 18, 2014 Order, Plaintiff filed an eighty 19 four (84) page complaint in which he claims constitutional violations ranging from 20 January 26, 2012 through September 9, 2013. See Heilman v. Ridge, et al., S.D. Cal. 21 Civil Case No. 13cv2788 JLS (DHB), ECF Doc. No. 1 at 1 (“Ridge”). In addition, 22 Plaintiff alleged Defendant Cook, who is a Defendant in the action before this Court, was 23 deliberately indifferent to his serious medical needs during this 2012 to 2013 time frame. 24 Plaintiff claims in his Motion that “the acts as described in the Ridge, et al case are 25 26 27 28 1 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. CAL. 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. 2 14cv1412 GPC (JMA) 1 dissimilar in nature, and not in the same time period as the acts described in the instant 2 action.” Pl.’s Mtn. for Recon., ECF No. 7, at 4. However, this statement by Plaintiff is 3 directly contradicted by the first page of the complaint he filed in the Ridge action which 4 does cover the same time period as the allegations in this action and names some of the 5 same Defendants. Moreover, Plaintiff is alleging deliberate indifference to his serious 6 medical needs by Defendant Cook in both cases. If there is a truly separate issue from 7 the claims raised in the Ridge matter, Plaintiff will have the opportunity to clarify that 8 by filing an amended pleading in this action. 9 Plaintiff also claims as to the second matter which the Court found duplicative 10 claims, Heilman v. Silva, et al., S.D. Cal. Civil Case No. 13cv2984 JLS (MDD), he 11 “inadvertently” included the same claims against the same Defendants in this matter. 12 Plaintiff “moves the Court to reconsider its ruling to dismiss the case without prejudice 13 to allow the filing of a First Amended Complaint.” Pl.’s Mtn. Recon. at 5. This request 14 is moot in light of the fact that the Court has already granted Plaintiff leave to file a First 15 Amended Complaint in this matter. See June 18, 2014 Order at 6. 16 A motion for reconsideration cannot be granted merely because Plaintiff is 17 unhappy with the judgment, frustrated by the Court’s application of the facts to binding 18 precedent or because he disagrees with the ultimate decision. See 11 Charles Alan 19 Wright & Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2007) (citing 20 Edwards v. Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Plaintiff has failed to 21 provide any factual or evidentiary support for any basis under Rule 60(b) that would 22 justify vacating the Court’s June 18, 2014 Order. 23 Therefore, Plaintiff’s Motion for Reconsideration is DENIED. CONCLUSION AND ORDER 24 25 Accordingly, the Court hereby 26 (1) DENIES Plaintiff’s Motion for Reconsideration; and 27 (2) Sua sponte GRANTS Plaintiff’s Motion for Extension of Time to File a 28 First Amended Complaint (ECF No. 7). Plaintiff is granted sixty (60) days leave from 3 14cv1412 GPC (JMA) 1 the date this Order is entered in which to file a First Amended Complaint which cures 2 all the deficiencies of pleading noted in the Court’s June 18, 2014 Order. Plaintiff is 3 once again cautioned that should he elect to amend, his Amended Complaint must be 4 complete in itself, that it will supersede his original Complaint, and that any claim not 5 re-alleged against any Defendant previously named will be considered waived. See S.D. 6 CAL. CIVLR 15.1; King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff is further 7 cautioned that the Local Rule provides that complaints filed by prisoners pursuant to 8 § 1983 may use the court’s approved form, along with no more than an additional fifteen 9 (15) pages. S.D. Cal. CivLr 8.2(a). 10 11 12 13 (3) The Clerk of Court is directly to mail Plaintiff a blank court approved civil rights complaint form. IT IS SO ORDERED. DATED: July 25, 2014 14 15 HON. GONZALO P. CURIEL United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 4 14cv1412 GPC (JMA)

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