(PC) Davis v. Burton ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DON ANGELO DAVIS, No. 2:20-cv-1260 DB P 11 Plaintiff, 12 v. ORDER 13 ROBERT BURTON, Warden, 14 Defendant. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims that his Eighth Amendment rights were violated. Presently 18 before the court is plaintiff’s motion for judicial notice. (ECF No. 21.) For the reasons set forth 19 below, the court construes the request as a motion for consideration and will deny the motion. 20 I. Background 21 By order dated June 16, 2021, the court screened and dismissed plaintiff’s amended 22 complaint because even though plaintiff had stated a potentially cognizable Eighth Amendment 23 claim, he had identified only Doe defendants. (ECF No. 15.) Plaintiff was given sixty days leave 24 to amend and advised to use the time to attempt to determine the names of the Doe defendants. 25 (Id.) 26 In response plaintiff filed a two-page document captioned “First Amended Complaint.” 27 (ECF No. 19.) His filing did not restate the factual allegations contained in prior complaints. 28 Rather, plaintiff stated that he wanted to add officers J. Ceja and K. Lamas as defendants. (Id. at 1 1.) He further stated he was still in the process of trying to ascertain the names of the Doe 2 defendants. (Id. at 2.) 3 The court dismissed the complaint for failure to state a claim because it did not contain a 4 recitation of the facts giving rise to the claim. Additionally, the court noted that the facts alleged 5 in prior complaints regarding officers Ceja and Lamas were not likely to support a cognizable 6 claim against these officers. (ECF No. 20 at 4.) The court explained that plaintiff could not state 7 a cognizable claim against these officers based solely on their involvement in processing and/or 8 responding to his grievance. (Id.) Plaintiff was granted thirty days leave to file an amended 9 complaint. (Id. at 6.) 10 Thereafter, plaintiff filed the instant request for judicial notice. (ECF No. 21.) He argues 11 the court improperly dismissed his claims against officers Ceja and Lamas, as well as his prior 12 complaints. He claims that because he spoke with Ceja and Lamas about the incident, they 13 became a fourth and fifth party to the alleged constitutional violations. (Id. at 4.) Because 14 plaintiff alleges the court improperly dismissed his prior complaint, the court will construe the 15 request for judicial notice as a motion for reconsideration of the court’s August 27, 2021 16 screening order. 17 II. Request for Reconsideration 18 Under Federal Rule of Civil Procedure 60, reconsideration is appropriate in three 19 instances: (1) when there has been an intervening change of controlling law; (2) new evidence has 20 come to light; or (3) when necessary to correct a clear error or prevent manifest injustice. School 21 District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (1993). Additionally, the local rules state that 22 a motion for reconsideration must demonstrate: “what new or different facts or circumstances are 23 claimed to exist which did not exist or were not shown upon such prior motion, or what other 24 grounds exist for the motion; and [ ] why the facts or circumstances were not shown at the time of 25 the prior motion.” E.D. Cal. R. 230(j)(3), (4). 26 “[A] motion for reconsideration should not be granted, absent highly unusual 27 circumstances, unless the district court is presented with newly discovered evidence, committed 28 //// 1 clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners v. 2 Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 3 Plaintiff’s request for judicial notice indicates his disagreement with the court’s screening 4 order. (ECF No. 21.) However, plaintiff’s disagreement with the court’s ruling is not grounds for 5 reconsideration. See U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) 6 (Mere disagreement with the decision is not sufficient grounds to warrant relief from the order.). 7 Accordingly, the court will deny the motion. 8 III. Identifying the Doe Defendants 9 The court notes that plaintiff sought to add Ceja and Lamas as defendants because he has 10 not yet ascertained the identities of the Doe defendants. He has further indicated that he is still 11 attempting to identify the Doe defendants. He is advised that a court may authorize early 12 discovery “for the convenience of parties and witnesses and in the interests of justice.” Fed. R. 13 Civ. P. 26(d)(3). Courts generally require a party to show good cause to warrant early discovery. 14 See e.g., Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, 15 at *2 (E.D. Cal. June 9, 2010); Patrick v. Collins Inc. v. Does 1-1219, No. C 10-04468 LB, 2010 16 WL 5422569, at *2 (N.D. Cal. Dec. 28, 2010); U.S. v. Distribuidora Batiz CGH, S.A. De C.V., 17 No. 07cv370-WQH-JMA, 2009 WL 2487971, at *10 (S.D. Cal. Aug. 10, 2009). 18 When evaluating whether a plaintiff has shown good cause sufficient to warrant early 19 discover to identify a doe defendant, plaintiff must: “(1) identify the defendant with enough 20 specificity to allow the Court to determine whether the defendant is a real person or entity who 21 could be sued in federal court; (2) recount the steps taken to locate the defendant; (3) show that its 22 action could survive a motion to dismiss; and (4) file a request for discovery with the Court 23 identifying the persons or entities on whom discovery process might be served and for which 24 there is a reasonable likelihood that the discovery process will lead to identifying information.” 25 Io Group, Inc. v. Does 1-65, individuals, No. 10-4377 SC, 2010 WL 4055667 at *1 (N.D. Cal. 26 Oct. 15, 2010) (citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D.573, 578-80 (N.D. Cal. 27 1999). 28 //// 1 Plaintiff has not sought early discovery or indicated whether or not he has taken any steps 2 || to identify the doe defendants or requested discovery. Accordingly, the court declines to issue an 3 || order authorizing early discovery at this time. However, plaintiff may move for such an order. 4 IV. Conclusion 5 For the reasons set forth above, IT IS HEREBY ORDERED that: 6 1. Plamtiff’s request for judicial notice (ECF No. 21) is construed as a motion for 7 | reconsideration and denied. 8 2. Plaintiff is granted thirty days from the date of service of this order to file an amended 9 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 10 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 11 | number assigned to this case and must be labeled “Fourth Amended Complaint.” 12 3. Failure to comply with this order will result in a recommendation that this action be 13 || dismissed. 14 15 Dated: October 26, 2021 M7 ORAH BARNES 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 ppa2 95 DB/DB Prisoner Inbox/Civil/Rights/S/davil260.recon 26 27 28