Davis v. Clearlake Police Department

• Court: District Court, N.D. California
• Decided: January 3, 2023
• Docket: 3:22-cv-01481
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID M. DAVIS, Case No. 22-cv-01481-JSC

8 Plaintiff, ORDER OF DISMISSAL v. 9

10 CLEARLAKE POLICE DEPARTMENT, et al., 11 Defendants.

12 On July 14, 2022, the Court dismissed Plaintiff's civil rights complaint. (ECF No. 9.) The 13 claims against Defendants Clearlake Police Department, Lieutenant Herman, Sergeant Celli, and 14 Officer Hobbs (“the Clearlake County Defendants”) were dismissed for failure to present a 15 cognizable claim for relief, and Plaintiff was granted 28 days to file an amended complaint.1 (Id.) 16 Thereafter, he was granted an extension of time to December 14, 2022, to amend. (ECF No. 15.) 17 Plaintiff has not filed an amended complaint. Rather, on December 19, 2022, Plaintiff 18 filed a “response” to the order dismissing the complaint with leave to amend in which he argues 19 that his complaint should not have been dismissed. (ECF No. 16.) To the extent Plaintiff seeks 20 reconsideration of the Court’s order, he must obtain leave to do so by showing: (1) that at the time 21 of the motion for leave, a material difference in fact or law exists from that which was presented to 22 the court before entry of the interlocutory order for which the reconsideration is sought, and that in 23 the exercise of reasonable diligence the party applying for reconsideration did not know such fact 24 or law at the time of the interlocutory order; or (2) the emergence of new material facts or a 25 change of law occurring after the time of such order; or (3) a manifest failure by the court to 26 27 1 consider material facts which were presented to the court before such interlocutory order. See 2 || Civil L.R. 7-9. Plaintiffs response does not assert any material facts or law that either differ from 3 those that were presented, have newly emerged, or were not considered by the Court. Rather, he 4 || asserts that he does “not agree” with the order, but he does not dispute any of the Court’s specific 5 findings that his claims were not cognizable, nor does he address the reasoning or authority 6 || underlying those findings. Plaintiff's disagreement with the Court’s order may be raised on 7 appeal, but it is not a proper basis for reconsideration. See generally Twentieth Century - Fox 8 Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (reconsideration motions are not a 9 substitute for appeal or a means of attacking some perceived error of the court). 10 Plaintiff was cautioned on two occasions that his failure to file an amended complaint ll would result in the dismissal of his remaining claims. (ECF Nos. 9, 16.) Because he has not done 12 so or shown cause why not, the claims against the Clearlake County Defendants are DISMISSED 5 13 with prejudice. See WMX Technologies v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (when 14 || complaint has been dismissed with leave to amend and plaintiff does not amend, further district 15 || court determination is necessary). a 16 The Clerk shall enter judgment and close the file.

= 17 IT IS SO ORDERED. 18 Dated: January 3, 2023 lua Sut JACQUELINE SCOTT CORLEY 20 United States District Judge 21 22 23 24 25 26 27 28