1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABONILICO LAMAR CARROLL, Case No.: 3:19-cv-02073-AJB-NLS CDCR #BK-9830, 12 ORDER: Plaintiff, 13 v. (1) GRANTING PLAINTIFF’S 14 LETTER / MOTION FOR SAN DIEGO COUNTY JAIL SHERIFF, 15 RECONSIDERATION AND et al., VACATING JUDGMENT 16 Defendants. PURSUANT TO 17 Fed R. Civ. P. 59(e)
18 [ECF No. 11] 19 AND 20
21 (2) GRANTING REQUEST FOR EXTENSION OF TIME 22 TO AMEND 23 24 While he was a pretrial detainee held in the custody of the San Diego Central Jail 25 (“SDCJ”), Plaintiff Abonilico Lamar Carroll, now incarcerated at North Kern State 26 Prison (“NKSP”), filed this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 27 1 (“Compl.”). His Complaint sought to enjoin Defendants from conducting “illegal 28 searches” on persons who have not yet been convicted, and $17 million in general and 1 punitive damages based on an allegedly unlawful strip search conducted at the SDCJ on 2 September 19, 2019. Id. at 1-2, 4-6, 8. 3 I. Procedural Background 4 On July 28, 2020, the Court granted Plaintiff leave to proceed in forma pauperis, 5 but simultaneously screened and dismissed his Complaint for failing to state a claim 6 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). See ECF No. 7. The Court 7 granted Plaintiff 45 days leave in which to file an Amended Complaint that cured his 8 pleading deficiencies. See id. at 14‒15. Plaintiff never filed an Amended Complaint. 9 Therefore, on October 8, 2020, more than three weeks after his Amended Complaint was 10 due, the Court dismissed the case in its entirety based on Plaintiff’s failure to state a 11 claim and his failure to prosecute in compliance with the Court’s July 28, 2020 Order. 12 See ECF No. 8. The Clerk entered judgment accordingly. See ECF No. 9. 13 Approximately two weeks later, on October 21, 2020, Plaintiff submitted a letter 14 addressed to the Court and requesting a 30-day extension of time in which to file his 15 Amended Complaint. See ECF No. 11. In light of his pro se status, the Court construes 16 this letter as an application or Motion for Reconsideration pursuant to S. D. Cal. CivLR 17 7.1(i), and/or Fed. R. Civ. P. 59(e). See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 18 623 (9th Cir. 1988) (“In civil rights cases where the plaintiff appears pro se, the court 19 must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.”). 20 In his Letter/Motion, Plaintiff claims he has been “hindered from being able to file the 21 claim in a timely manner because of CoVID-19 and the modified movement at []his 22 prison.” Id. Plaintiff also states that he is “illiterate to law [and] a layperson.” Id. 23 II. Plaintiff’s Letter / Motion for Reconsideration / Extension of Time 24 S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration “[w]henever 25 any motion or any application or petition for any order or other relief has been made to 26 any judge . . . has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i). However, 27 the party seeking reconsideration must show “what new or different facts and 28 circumstances are claimed to exist which did not exist, or were not shown, upon such 1 prior application.” Id. Local Rule 7.1(i)(2) permits motions for re consideration within 2 “twenty-eight (28) days of the entry of the ruling, order or judgment sought to be 3 reconsidered.” 4 Moreover, where the Court’s ruling has resulted in a final judgment or order, a 5 motion for reconsideration may also be based either on Rule 59(e) (motion to alter or 6 amend judgment) or Rule 60(b) (motion for relief from judgment) of the Federal Rules of 7 Civil Procedure. See Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 8 1262 (9th Cir. 1993). A motion for reconsideration is treated as a motion to alter or 9 amend a judgment under Rule 59(e) if it is filed within 28 days of entry of judgment; 10 otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order. See 11 Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898–99 (9th Cir. 12 2001). 13 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore 14 the district court enjoys considerable discretion in granting or denying the motion. 15 Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. 16 Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam)). Nevertheless, 17 a motion for reconsideration under Rule 59(e) “should not be granted, absent highly 18 unusual circumstances, unless the district court is presented with newly discovered 19 evidence, committed clear error, or if there is an intervening change in the controlling 20 law.” Id. at 1255. Further, “[a] motion for reconsideration may not be used to raise 21 arguments or present evidence for the first time when they could reasonably have been 22 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & 23 Co., 571 F.3d 873, 880 (9th Cir. 2009). 24 “In general, there are four basic grounds upon which a Rule 59(e) motion may be 25 granted: (1) if such motion is necessary to correct manifest errors of law or fact upon 26 which the judgment rests; (2) if such motion is necessary to present newly discovered or 27 previously unavailable evidence; (3) if such motion is necessary to prevent manifest 28 injustice; or (4) if the amendment is justified by an intervening change in controlling 1 law.” Allstate Ins. Co., 634 F.3d at 1111. However, because “the rule offers an 2 extraordinary remedy, [it should] be used sparingly in the interests of finality and 3 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 4 890 (9th Cir. 2000) (citation and internal quotation marks omitted). 5 Here, Plaintiff’s letter requesting relief from the Court’s October 8, 2020 Order 6 and judgment is timely considered under both Local Rules 7.1(i) and Rule 59(e) because 7 it was submitted less than two weeks after the entry of judgment. See S.D. Cal. CivLR 8 7.1(i)(2); Fed. R. Civ. P. 59(e). It is clear from his letter, however, that Plaintiff seeks 9 another opportunity to amend his complaint, rather than a true reconsideration of the 10 Court’s October 8, 2020 Order dismissing his Complaint for failure to state a claim. But 11 “once judgment has been entered in a case, a motion to amend the complaint can only be 12 entertained if the judgment is first reopened under a motion brought under Rule 59 or 13 60.” Henry v. Adventist Health Castle Med. Ctr., 970 F.3d 1126, 1133 (9th Cir. 2020) 14 (citation omitted). 15 Plaintiff claims he was unable to timely amend “because of CoVID-19 and the 16 modified movement at [his] prison.” See ECF No. 11 at 1. Ordinarily, a plaintiff may not 17 use a Rule 59(e) motion to present argument or make claims that could have been 18 presented earlier. See Kona Enterprises, Inc., 229 F.3d at 890.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABONILICO LAMAR CARROLL, Case No.: 3:19-cv-02073-AJB-NLS CDCR #BK-9830, 12 ORDER: Plaintiff, 13 v. (1) GRANTING PLAINTIFF’S 14 LETTER / MOTION FOR SAN DIEGO COUNTY JAIL SHERIFF, 15 RECONSIDERATION AND et al., VACATING JUDGMENT 16 Defendants. PURSUANT TO 17 Fed R. Civ. P. 59(e)
18 [ECF No. 11] 19 AND 20
21 (2) GRANTING REQUEST FOR EXTENSION OF TIME 22 TO AMEND 23 24 While he was a pretrial detainee held in the custody of the San Diego Central Jail 25 (“SDCJ”), Plaintiff Abonilico Lamar Carroll, now incarcerated at North Kern State 26 Prison (“NKSP”), filed this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 27 1 (“Compl.”). His Complaint sought to enjoin Defendants from conducting “illegal 28 searches” on persons who have not yet been convicted, and $17 million in general and 1 punitive damages based on an allegedly unlawful strip search conducted at the SDCJ on 2 September 19, 2019. Id. at 1-2, 4-6, 8. 3 I. Procedural Background 4 On July 28, 2020, the Court granted Plaintiff leave to proceed in forma pauperis, 5 but simultaneously screened and dismissed his Complaint for failing to state a claim 6 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). See ECF No. 7. The Court 7 granted Plaintiff 45 days leave in which to file an Amended Complaint that cured his 8 pleading deficiencies. See id. at 14‒15. Plaintiff never filed an Amended Complaint. 9 Therefore, on October 8, 2020, more than three weeks after his Amended Complaint was 10 due, the Court dismissed the case in its entirety based on Plaintiff’s failure to state a 11 claim and his failure to prosecute in compliance with the Court’s July 28, 2020 Order. 12 See ECF No. 8. The Clerk entered judgment accordingly. See ECF No. 9. 13 Approximately two weeks later, on October 21, 2020, Plaintiff submitted a letter 14 addressed to the Court and requesting a 30-day extension of time in which to file his 15 Amended Complaint. See ECF No. 11. In light of his pro se status, the Court construes 16 this letter as an application or Motion for Reconsideration pursuant to S. D. Cal. CivLR 17 7.1(i), and/or Fed. R. Civ. P. 59(e). See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 18 623 (9th Cir. 1988) (“In civil rights cases where the plaintiff appears pro se, the court 19 must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.”). 20 In his Letter/Motion, Plaintiff claims he has been “hindered from being able to file the 21 claim in a timely manner because of CoVID-19 and the modified movement at []his 22 prison.” Id. Plaintiff also states that he is “illiterate to law [and] a layperson.” Id. 23 II. Plaintiff’s Letter / Motion for Reconsideration / Extension of Time 24 S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration “[w]henever 25 any motion or any application or petition for any order or other relief has been made to 26 any judge . . . has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i). However, 27 the party seeking reconsideration must show “what new or different facts and 28 circumstances are claimed to exist which did not exist, or were not shown, upon such 1 prior application.” Id. Local Rule 7.1(i)(2) permits motions for re consideration within 2 “twenty-eight (28) days of the entry of the ruling, order or judgment sought to be 3 reconsidered.” 4 Moreover, where the Court’s ruling has resulted in a final judgment or order, a 5 motion for reconsideration may also be based either on Rule 59(e) (motion to alter or 6 amend judgment) or Rule 60(b) (motion for relief from judgment) of the Federal Rules of 7 Civil Procedure. See Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 8 1262 (9th Cir. 1993). A motion for reconsideration is treated as a motion to alter or 9 amend a judgment under Rule 59(e) if it is filed within 28 days of entry of judgment; 10 otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order. See 11 Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898–99 (9th Cir. 12 2001). 13 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore 14 the district court enjoys considerable discretion in granting or denying the motion. 15 Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. 16 Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam)). Nevertheless, 17 a motion for reconsideration under Rule 59(e) “should not be granted, absent highly 18 unusual circumstances, unless the district court is presented with newly discovered 19 evidence, committed clear error, or if there is an intervening change in the controlling 20 law.” Id. at 1255. Further, “[a] motion for reconsideration may not be used to raise 21 arguments or present evidence for the first time when they could reasonably have been 22 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & 23 Co., 571 F.3d 873, 880 (9th Cir. 2009). 24 “In general, there are four basic grounds upon which a Rule 59(e) motion may be 25 granted: (1) if such motion is necessary to correct manifest errors of law or fact upon 26 which the judgment rests; (2) if such motion is necessary to present newly discovered or 27 previously unavailable evidence; (3) if such motion is necessary to prevent manifest 28 injustice; or (4) if the amendment is justified by an intervening change in controlling 1 law.” Allstate Ins. Co., 634 F.3d at 1111. However, because “the rule offers an 2 extraordinary remedy, [it should] be used sparingly in the interests of finality and 3 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 4 890 (9th Cir. 2000) (citation and internal quotation marks omitted). 5 Here, Plaintiff’s letter requesting relief from the Court’s October 8, 2020 Order 6 and judgment is timely considered under both Local Rules 7.1(i) and Rule 59(e) because 7 it was submitted less than two weeks after the entry of judgment. See S.D. Cal. CivLR 8 7.1(i)(2); Fed. R. Civ. P. 59(e). It is clear from his letter, however, that Plaintiff seeks 9 another opportunity to amend his complaint, rather than a true reconsideration of the 10 Court’s October 8, 2020 Order dismissing his Complaint for failure to state a claim. But 11 “once judgment has been entered in a case, a motion to amend the complaint can only be 12 entertained if the judgment is first reopened under a motion brought under Rule 59 or 13 60.” Henry v. Adventist Health Castle Med. Ctr., 970 F.3d 1126, 1133 (9th Cir. 2020) 14 (citation omitted). 15 Plaintiff claims he was unable to timely amend “because of CoVID-19 and the 16 modified movement at [his] prison.” See ECF No. 11 at 1. Ordinarily, a plaintiff may not 17 use a Rule 59(e) motion to present argument or make claims that could have been 18 presented earlier. See Kona Enterprises, Inc., 229 F.3d at 890. Indeed, if conditions at 19 NKSP due to the CoVID-19 pandemic were thwarting his ability to amend his pleading 20 on time, Plaintiff should have requested an extension of time before the Court entered a 21 final judgment of dismissal. Nevertheless “‘[s]trict time limits ... ought not to be insisted 22 upon’ where restraints resulting from a pro se ... plaintiff’s incarceration prevent timely 23 compliance with court deadlines.” Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) 24 (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 25 293 F.3d 1096, 1098 (9th Cir. 2000) (reversing district court’s dismissal of prisoner’s 26 amended pro se complaint as untimely where mere 30-day delay was result of his 27 disciplinary segregation). Indeed, Federal Rule of Civil Procedure 15(a) provides that 28 leave to amend be freely given whenever justice so requires, and “a district court should 1 grant [a pro se litigant subject to § 1915(e)(2) screening] leave to amend even if no 2 request to amend the pleading was made, unless it determines that the pleading could not 3 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 4 (9th Cir. 2000) (en banc) (citation omitted). 5 Thus, taking Plaintiff at his word, the Court finds the modified programming 6 restrictions in place at NKSP due to the CoVID-19 global pandemic, which allegedly 7 hindered his ability to timely submit either an amended complaint or a request for 8 extension of time prior to the entry of judgment in this case, present circumstances 9 sufficient to justify reconsideration and to vacate its October 8, 2020 judgment in order to 10 permit Plaintiff an opportunity to amend.1 See e.g., Benge v. Ryan, No. CV1802544 PHX 11 MTL CDB, 2020 WL 601667, at *2 (D. Ariz. Feb. 7, 2020) (vacating judgment pursuant 12 to Fed. R. Civ. P. 59(e) and 60(b), and granting homeless pro se plaintiff leave to amend 13 based on claims he was unable to timely comply with court’s screening order requiring 14 amendment based on his release from prison and inability to access medications), appeal 15 dismissed, No. 20-15334, 2020 WL 5049169 (9th Cir. July 22, 2020). 16 III. Conclusion and Order 17 Accordingly, the Court VACATES its October 8, 2020 Judgment [ECF No. 9] 18 and GRANTS Plaintiff’s Letter / Motion for Reconsideration [ECF No. 11]. The Court 19 GRANTS Plaintiff leave to file an Amended Complaint that addresses all the 20 deficiencies of pleading previously identified in the Court’s July 28, 2020 Order no later 21 than December 11, 2020. Plaintiff’s Amended Complaint and must be complete by itself 22
23 1 The Court takes judicial notice of the CDCR’s website which confirms “modified movement” 24 restrictions, see ECF No. 11 at 1, have been implemented in response to the CoVID-19 pandemic. See 25 https://www.cdcr.ca.gov/covid19/covid-19-response-efforts/#VCMP (last visited Nov. 6, 2020). Nevertheless, guidelines still provide prisoners like Plaintiff access to law library services. See id. 26 (“During modified programming, legal library services will be available via the ‘paging’ system, in which forms, copies, etc. are requested by inmates with Priority Legal User status and delivered to housing units 27 via institutional mail.”); George v. Diaz, No. 20-CV-03244-SI, 2020 WL 5073996, at *2 (N.D. Cal. Aug. 24, 2020) (taking judicial notice of materials on the CDCR’s website “that reflect that the CDCR has 28 1 || without reference to original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, 2 ||Inc. v. Richard Feiner & Co. Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended 3 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 4 ||2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 5 ||amended pleading may be “considered waived if not repled.’’). 6 If Plaintiff fails to file an Amended Complaint on or before December 11, 2020, 7 Court will re-enter a final Order dismissing this civil action based both on his failure 8 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 9 || his failure to prosecute in compliance with a court order requiring amendment. See Lira 10 || v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘If a plaintiff does not take advantage 11 || of the opportunity to fix his complaint, a district court may convert the dismissal of the 12 ||complaint into dismissal of the entire action.”). Plaintiff should assume no further 13 || extensions of time will be granted.” 14 IT ISSO ORDERED. 15 Dated: November 6, 2020 Q 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23
25 ||° Even acknowledging the CoVID-19 restrictions which have limited Plaintiff’s access to NKSP’s law library, those limitations, without more, will hereafter be considered insufficient to justify another 26 extension. See, e.g., Rosenblum vy. Ellis, No. 1:05-CV-01473-LJO-GSA-PC, 2010, WL 2471148, at *2 (E.D. Cal. June 10, 2010) (advising pro se prisoner that the “lack of access to the law library is not 27 || sufficient grounds for a motion for extension of time in which to file an amended complaint.”); id. (noting 8 that an “amended complaint does not require legal analysis. Plaintiff must simply allege facts that entitle him to relief, and state the legal cause of action for each claim.’’).