Johnson v. Doe et al

Filing 24

ORDER (1) Granting 23 Plaintiff's Motion for Reconsideration; (2) Vacating Order 20 and Clerk's Judgment 21 ; and (3) Granting Plaintiff Leave to File a Second Amended Complaint. The Court grants Plaintiff thirty (30) days to file a Second Amended Complaint. Signed by Judge Larry Alan Burns on 3/5/2018. (All non-registered users served via U.S. Mail Service) (Blank copy of Complaint Under the Civil Rights Act, 42 U.S.C. § 1983 form mailed to Plaintiff.)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEDRIC EUGENE JOHNSON,

Case No.: 3:17-cv-00889-LAB-JLB

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ORDER:

Plaintiff,

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vs.

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JOHN DOE; SERGEANT JOHN DOE;
LOPEZ; GARCIA; CENTINELA STATE
PRISON,

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(1) GRANTING PLAINTIFF’S
MOTION FOR
RECONSIDERATION;

Defendants.

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(2) VACATING ORDER AND
CLERK’S JUDGMENT;

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AND

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(3) GRANTING PLAINTIFF LEAVE
TO FILE A SECOND AMENDED
COMPLAINT

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(ECF No. 23)

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Sedric Eugene Johnson (“Plaintiff”), proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983, has filed a Motion for Reconsideration of the Court’s

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January 16, 2018 Order dismissing the entire action. (ECF No. 23.)

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3:17-cv-00889-LAB-JLB

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I.

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Procedural History
On May 1, 2017, Plaintiff filed this action. (ECF No. 1.) In addition, Plaintiff filed

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a Motion for Leave to Proceed IFP. (ECF No. 2.) On September 12, 2017, the Court

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GRANTED Plaintiff’s Motion to Proceed IFP but simultaneously DISMISSED his

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Complaint for failing to state a claim upon which relief could be granted pursuant to 28

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U.S.C. § 1915(e)(2) & § 1915A. (ECF No. 14.) Plaintiff was granted leave to file an

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amended pleading. (Id.)

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On October 5, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF
No. 18.) The Court, once again, conducted the required sua sponte screening and

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DISMISSED Plaintiff’s FAC for failing to state a claim upon which relief could be

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granted pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A. (ECF No. 19.) Plaintiff was

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given thirty (30) days leave to file amended pleading. (Id.) However, that time passed

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and Plaintiff failed to comply with the Court’s Order. Therefore, on January 16, 2018,

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the Court dismissed the action in its entirety for the reasons set forth in the Court’s

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November 28, 2017 Order and for failing to comply with a Court order. (ECF No. 20.)

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On February 21, 2018, Plaintiff filed a Motion for Reconsideration of the Court’s

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January 16, 2018 Order. (ECF No. 23.)

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II.

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Plaintiff’s Motion for Leave to File an Amended Complaint
In this Motion, Plaintiff seeks leave to vacate the Court’s Order dismissing the

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entire action on the grounds that Plaintiff mistakenly filed an entirely new action instead

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of filing an amended pleading in this matter. (See Pl.’s Mot., ECF No. 23, at 1.) The

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Federal Rules of Civil Procedure do not expressly provide for motions for

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reconsideration. However, a motion requesting reconsideration of a matter previously

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decided may be construed as a motion to alter or amend judgment under Rule 59(e) or

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Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re

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Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994).

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3:17-cv-00889-LAB-JLB

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“A Rule 59(e) motion may be granted if ‘(1) the district court is presented with newly

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discovered evidence, (2) the district court committed clear error or made an initial decision

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that was manifestly unjust, or (3) there is an intervening change in controlling law.’”

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Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City of

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Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a substantive

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change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988)

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(quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)), and “is

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an extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197

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F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to “‘relitigate old matters,

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or to raise arguments or present evidence that could have been raised prior to the entry of

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judgment.’” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1117 (D. Nev.

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2013) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d

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ed. 1995)).

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In the Court’s November 28, 2017 Order, Plaintiff was given leave to file an

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amended pleading and provided a blank court approved civil rights complaint form for his

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“use and to assist him” in comply with the Court’s Order. (ECF No. 19 at 7.)

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

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notice of proceedings in other courts, both within and without the federal judicial system,

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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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3:17-cv-00889-LAB-JLB

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The Court takes judicial notice of Johnson v. Centinela State Prison, et al., S.D.

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Cal. Civil Case No. 17cv2568 CAB (WVG) (Filed Dec. 26, 2017.) This matter involves

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the same facts and the same parties as the action before this Court. The Court notes that

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Plaintiff failed to write the case number on the operative pleading, failed to identify it as

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an amended pleading, and submitted a motion to proceed IFP. (Id., ECF Nos. 1, 2.) For

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these reasons, the Clerk of Court opened this second matter as a new action. In Plaintiff’s

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current Motion, it appears that he was confused by the blank form complaint he received

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and was perhaps unaware that he needed to supply the correct identifying information

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himself.

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For these reasons, the Court will GRANT Plaintiff’s request and will permit

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Plaintiff leave to file an amended complaint. The Court will provide Plaintiff with

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another blank form but Plaintiff must supply the correct case number and properly

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identify the pleading as a Second Amended Complaint.

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III.

Conclusion and Order

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Based on the foregoing, the Court:

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1)

GRANTS Plaintiff’s Motion for Reconsideration (ECF No. 23);

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2)

VACATES the Court’s January 16, 2018 Order and the Clerk’s Judgment

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(ECF Nos. 20, 21);

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3)

GRANTS Plaintiff thirty (30) days to file a Second Amended Complaint

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which corrects the deficiencies of pleading identified in the Court’s November 28, 2017

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Order. Plaintiff’s Amended Complaint must be complete by itself without reference to

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his original pleading. Defendants not named and any claim not re-alleged in his Amended

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Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,

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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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3:17-cv-00889-LAB-JLB

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The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy

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of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff must

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provide the correct case number and identify the pleading as his “Second Amended

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Complaint.”

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If Plaintiff fails to file an amended pleading, this Court will enter a final order of
dismissal.

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IT IS SO ORDERED.

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Dated: March 5, 2018
HON. LARRY ALAN BURNS
United States District Judge

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3:17-cv-00889-LAB-JLB