Acuna v. Pollard et al

Filing 6

ORDER: (1) Setting Aside Judgment in 21cv1910-LL-AGS (2) Directing Clerk To File Complaint In 22cv319-LL-AHG [ECF.No. 1 ] As Amended Complaint in 21cv1910-LL-AGS (3) Administratively Closing 22cv319-ll-AHG As Opened In Error. Signed by Judge Linda Lopez on 5/6/2022.(All non-registered users served via U.S. Mail Service)(ddf)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 ALEX ISTOK ACUNA, CDCR #P-85538 Plaintiff, 13 vs. 14 15 16 17 18 Case Nos.: 21cv1910-LL-AGS; 22cv319-LL-AHG MARCUS POLLARD, Warden, R. VARGAS, Deputy Warden, M. GLENN, B. HENDRICKS, HOWARD MOSLEY, S. GATES, STEADMAN, 19 Defendants. 20 ORDER: (1) SETTING ASIDE JUDGMENT IN 21cv1910-LL-AGS (2) DIRECTING CLERK TO FILE COMPLAINT IN 22cv319-LL-AHG [ECF No. 1] AS AMENDED COMPLAINT IN 21cv1910-LL-AGS (3) ADMINISTRATIVELY CLOSING 22cv0319-LL-AHG AS OPENED IN ERROR 21 22 23 24 I. Introduction and Background 25 On October 29, 2021, Alex Istok Acuna (“Plaintiff” or “Acuna”), an inmate 26 currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”), located in San 27 Diego, California and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. 28 1 1 § 1983. The case was assigned case number 21cv1910-LL-AGS. 1 Plaintiff also filed a 2 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). On January 3 20, 2022, the Court granted Plaintiff’s motion to proceed IFP and dismissed the complaint 4 without prejudice for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 5 1915A(b). See 21cv1910-LL-AGS, ECF No. 7. The Court gave Plaintiff leave to file an 6 amended complaint by March 6, 2022. See id. at 10–11. The Court notified Plaintiff that 7 failure to file an amended complaint by that date would result in his civil action being 8 dismissed for failure to state a claim and failure to prosecute. Id. On April 11, 2022, the 9 Court dismissed the action in its entirety. 10 In the meantime, the Clerk of Court received a civil complaint from Plaintiff on 11 March 7, 2022. Because the complaint did not include a case number or reference to 12 Plaintiff’s pending case in 21cv1019-LL-AGS, it was opened as a new case and given the 13 case number 22-cv-319-BAS-AHG. Upon an initial review of the new complaint, however, 14 the Court discovered it should have been filed as an amended complaint in case number 15 21cv1910-LL-AGS. On April 28, 2022, the Court issued a low-number order, transferring 16 22cv319-BAS-AHG to the undersigned judge. See 22-cv-0319-LL-AHG, ECF No. 3. On 17 April 29, 2022, the Court received a letter from Plaintiff confirming that he intended that 18 22cv319-LL-AHG be filed as an amended complaint in 20cv1910-LL-AGS. See 22cv31919 LL-AHG, ECF No. 5. 20 II. Discussion and Order 21 The Court construes Plaintiff’s April 29, 2022 letter as a Motion to Set Aside 22 Judgment in case number 21cv191-LL-AGS. Under Federal Rule of Civil Procedure 23 60(b)(1), a Court may set aside judgment because of mistake, either Plaintiff’s or the 24 Clerk’s Office, or excusable neglect. Fed. R. Civ. P. 60(b)(1). Here, Plaintiff’s amended 25 complaint was inadvertently docketed as a new civil action by the Clerk of Court. To 26 27 1 The case was originally filed in the United States District Court for the Northern District of California 28 and was transferred to this Court on November 8, 2021. ECF No. 3. 2 1 correct this administrative error, the Court grants Plaintiff’s request that judgment be set 2 aside in 21cv1910-LL-AGS. The Court further directs the Clerk of Court to file the 3 document previously filed as a new complaint in 22cv319-LL-AHG [ECF No. 1] as an 4 amended complaint in 21cv1910-LL-AGS. The Court further orders the Clerk to 5 administratively close 22cv319-LL-AHG as opened in error. Plaintiff’s civil case will 6 proceed under 21cv1910-LL-AGS and the Court will screen the amended complaint in due 7 course. Finally, the Court directs the Clerk of Court to file a copy of this Order in both 8 Civil Case No. 21cv1910-LL-AGS and Civil Case No. 22cv319-LL-AHG. 9 IT IS SO ORDERED. 10 Dated: May 6, 2022 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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