Schwartzmiller et al v. Rodriguez et al

Filing 18

ORDER denying 17 Motion to reconsider order denying motion to alter or amend and sua sponte granting extension of time to file First Amended Complaint. (blank 42 USC 1983 complaint form mailed to Plaintiff). Signed by Judge John A. Houston on 11/08/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEAN A. SCHWARTZMILLER, Case No.: 3:17-cv-00538-JAH-PCL Plaintiff, 12 13 14 ORDER DENYING MOTION TO RECONSIDER ORDER DENYING MOTION TO ALTER OR AMEND AND SUA SPONTE GRANTING EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT v. K. RODRIGUEZ, et al., Defendants. 15 16 17 18 19 20 21 I. Procedural History On March 16, 2017, Dean Schwartzmiller (“Plaintiff”), currently incarcerated at 22 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and 23 proceeding pro se, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 24 (Doc. No. 1). In addition, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 25 pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). On May 22, 2017, the Court granted 26 Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to 27 state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (Doc. No. 28 3 at 12-13.) 1 3:17-cv-00538-JAH-PCL 1 Plaintiff was granted leave to file an amended pleading in order to correct the 2 deficiencies of pleading identified in the Court’s Order. (Id. at 13.) Instead of following 3 the Court’s Order, Plaintiff filed a Motion for Preliminary Injunction which the Court 4 denied on June 6, 2017. (Doc. Nos. 5, 6.) Plaintiff then filed a “Motion to Alter or 5 Amend” pursuant to Fed.R.Civ.P. 52(b) & 59(e). (Doc. No. 8.) Soon after, Plaintiff filed 6 a Notice of Appeal to the Ninth Circuit regarding the Court’s June 6, 2017 Order denying 7 Plaintiff’s Motion for Preliminary Injunction. (Doc. No. 9.) On September 13, 2017, the 8 Ninth Circuit issued an Order summarily affirming this Court’s June 6, 2017 Order 9 finding that “a review of the record and the opening brief indicates that the questions 10 raised in this appeal are so insubstantial as to not require further argument.” (Doc. No. 11 13 at 1.) 12 This Court DENIED Plaintiff’s “Motion to Alter or Amend Order on Motion for 13 Leave to Proceed In Forma Pauperis” on September 22, 2017. (Doc. No. 14.) Plaintiff 14 was, however, sua sponte granted an extension of time to file a First Amended 15 Complaint to correct the deficiencies of pleading identified in the Court’s May 22, 2017 16 Order. (Id. at 7.) However, Plaintiff has not complied with either the May 22, 2017 17 Order or the September 22, 2017 Order but instead has filed a “Motion to Reconsider 18 Order Denying Motion to Alter or Amend.” (Doc. No. 17.) 19 II. Plaintiff’s Motion 20 The Federal Rules of Civil Procedure do not expressly provide for motions for 21 reconsideration. However, a motion requesting reconsideration of a matter previously 22 decided may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 23 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead 24 Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). 25 Rule 60(b) provides for reconsideration where one or more of the following is 26 shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 27 evidence which by due diligence could not have been discovered before the court's 28 decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has 2 3:17-cv-00538-JAH-PCL 1 been satisfied; (6) any other reason justifying relief. FED. R. CIV. P. 60(b); School Dist. 1J 2 v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 3 “Although the application of Rule 60(b) is committed to the discretion of the district 4 courts . . ., as a general matter, Rule 60(b) is remedial in nature and must be liberally 5 applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir. 2001) 6 (internal quotation marks and ellipsis omitted). Nevertheless, Rule 60(b) provides for 7 extraordinary relief and may be invoked only upon a showing of “exceptional 8 circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994). 9 Plaintiff’s Motion consists of his clear disagreement with the Court’s Orders but 10 provides no new arguments or facts that would require the Court to vacate any of the 11 prior Orders. Plaintiff, at times, argues that the Court’s screening order of his forty eight 12 (48) page Complaint in which he named thirty seven (37) Defendants was factually and 13 legally wrong. At other times, Plaintiff argues that the Court’s order denying his 14 previously Motion for Reconsideration was factually and legally wrong. Plaintiff claims 15 that the “Court has acted as though it were a party to the case fighting a Rule 12(b) 16 motion with evidence before it.” (Pl.’s Mot. at 19.) Plaintiff claims that the Court should 17 not “manufacture” a “complete defense” from “facts that do not exist.” (Id.) Finally, 18 Plaintiff claims that the Court “did not address all of the arguments” in the previous 19 Motion or found in his Complaint. (Id. at 20.) 20 The “policy of construing pleadings liberally does not justify the conclusion that any 21 document filed in a court giving some notice of a claim satisfies the requirements of the 22 Federal Rules.” In re Marino, 37 F.3d 1354, 1357 (9th Cir. 1994). Moreover, as the Court 23 noted in its May 22, 2017 Order, Rule 8 specifically requires that a pleading “must contain” 24 a “short and plain statement” of the grounds for jurisdiction and the claim, as well as a 25 demand for relief sought. FED. R. CIV. P. 8(a). “Violations of this Rule warrant dismissal, 26 but there are multiple ways that it can be violated.” Knapp v. Hogan, 738 F.3d 1106, 1109 27 (9th Cir. 2013); see also McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir.1996) 28 (affirming a dismissal under Rule 8, and recognizing that “[p]rolix, confusing complaints 3 3:17-cv-00538-JAH-PCL 1 such as the ones plaintiffs filed in this case impose unfair burdens on litigants and judges”)). 2 Just because the Court cited to relevant portions of his pleading in its Order in an 3 attempt to concisely summarize the bases of Plaintiff’s claims does not mean it ignored the 4 rest. While not required to “waste[] half a day in chambers preparing the ‘short and plain 5 statement’ which Rule 8 obligate[s] [the] plaintiff[] to submit,” McHenry, 84 F.3d at 1179- 6 80, that is what the Court attempted to do in order to simply and clearly describe the nature 7 of his suit, and to determine the basis of its jurisdiction. The Court is not further required 8 to comb through a pleading that violates Rule 8 in order to “fish a gold coin from a bucket 9 of mud.” United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 10 2003). 11 Moreover, to the extent Plaintiff implies that the Court has failed to liberally construe 12 his pleadings, “[p]ro se litigants must follow the same rules of procedure that govern other 13 litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 14 46 F.3d 52, 54 (9th Cir. 1995) (per curiam); Carter v. Comm’r, 784 F.2d 1006, 1008 (9th 15 Cir. 1986). “The hazards which beset a layman when he seeks to represent himself are 16 obvious. He who proceeds pro se with full knowledge and understanding of the risks does 17 so with no greater rights than a litigant represented by a lawyer, and the trial court is under 18 no obligation to become an ‘advocate’ for or to assist and guide the pro se layman through 19 the trial thicket.” Jacobsen v. Filler, 790 F.2d 1362, 1365 n.5 (9th Cir. 1986) (quoting 20 United States v. Pinkey, 548 F.2d 30, 311 (10th Cir. 1977)). 21 III. Conclusion and Order 22 For these reasons, IT IS ORDERED that: 23 (1) Plaintiff’s Motion to Reconsider Order Denying Motion to Alter or Amend 24 Order (Doc. No. 17) is DENIED. No further Motions for Reconsideration will be 25 accepted for filing. 26 (2) Plaintiff is sua sponte GRANTED thirty (30) days leave from the date of 27 this Order in which to file an Amended Complaint which cures all the deficiencies of 28 pleading noted in the Court’s May 22, 2017 Order. Plaintiff’s Amended Complaint must 4 3:17-cv-00538-JAH-PCL 1 be complete in itself without reference to his original pleading. Defendants not named 2 and any claims not re-alleged in the Amended Complaint will be considered waived. See 3 S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 4 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 5 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 6 leave to amend which are not re-alleged in an amended pleading may be “considered 7 waived if not repled.”). No further extensions of time will be granted absent the showing 8 of extraordinary circumstances. 9 (3) If Plaintiff fails to file an Amended Complaint in the time frame set forth 10 above, the Court will issue an Order dismissing the entire action with prejudice for the 11 reasons set forth in the Court’s May 22, 2017 Order and for failing to comply with Court 12 Orders pursuant to FED. R. CIV. P. 41(b). 13 (4) The Clerk of Court is directed to mail to Plaintiff, together with this Order, a 14 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 15 § 1983” for his use in amending. 16 17 18 19 Dated: November 2, 2017 Hon. John A. Houston United States District Judge 20 21 22 23 24 25 26 27 28 5 3:17-cv-00538-JAH-PCL

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