Bennett v. Arpaio

Full title: James Sterling Bennett, Plaintiff, v. Joseph Arpaio, Defendant

Court: United States District Court, D. Arizona

Date published: Apr 25, 2006

No. CV 05-0599-PHX-JAT (ECV) (D. Ariz. Apr. 25, 2006)

Opinion

No. CV 05-0599-PHX-JAT (ECV).

April 25, 2006

ORDER

EDWARD VOSS, Magistrate Judge

Plaintiff has filed a Motion for Reconsideration of Court's Order dated March 16, 2006. Doc. #29. In that order, the court granted Plaintiff leave to file an amended complaint but rejected the proposed First Amended Complaint lodged with the Clerk of Court because it contained allegations of unsanitary conditions at the jail. In a previous order, United States District Judge Teilborg dismissed the claim of unsanitary conditions because Plaintiff failed to exhaust his administrative remedies. Plaintiff contends that his First Amended Complaint does not allege the unsanitary conditions as a separate claim but rather as an effect of the overcrowding. He therefore asks the court to reconsider its order and direct the Clerk of Court to file the lodged First Amended Complaint.

Plaintiff has failed to show that the court committed clear error or that any other basis for reconsideration exists. See School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) ("Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law."). Although Plaintiff claims that his allegations of unsanitary conditions are not a separate claim, they could be construed as such. The District Court expressly dismissed the unsanitary conditions claim and Plaintiff may not resurrect it simply by re-characterizing the allegations as factual support for a different claim. Plaintiff's motion will therefore be denied.

Additionally, in the previous order, Plaintiff was given until April 10, 2006 to file a new First Amended Complaint. As of this date, he has not done so. The Motion for Reconsideration did not alleviate Plaintiff from complying with the court's order. Plaintiff will be given one final opportunity to file a new First Amended Complaint. If he fails to do so, the action will proceed under the Original Complaint.

IT IS THEREFORE ORDERED:

That Plaintiff's Motion for Reconsideration of Court's Order dated March 16, 2006 (Doc. #29) is denied; and

That if Plaintiff intends to file a First Amended Complaint, he must do so on or before Friday, May 5, 2006.