Opinion
No. CV-F-03-5023 REC/SMS P, ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 58).
December 8, 2005
On December 7, 2005, plaintiff filed a motion for reconsideration of the court's October 19, 2005 Order denying plaintiff's Motion to Supplement the Complaint.
In conjunction with the October 19 Order, the Magistrate Judge recommended that the court grant plaintiff's motion to dismiss the Doe defendants. In his objections to the recommendation, plaintiff asserted that the court erred in denying his motion to supplement the Complaint. The district court ruled that the appropriate mechanism to raise that claim was in a motion for reconsideration filed pursuant to Rule 72-303, Local Rules of Practice. Plaintiff then filed the instant motion for reconsideration.
In the motion for reconsideration, plaintiff asserts that he did not seek to add new defendants or new claims to the instant action, but that he seeks to "include action by both Hirsch and Traynham of the same nature alleged in the Complaint which are directly related to those claims alleged in the Complaint but which occurred subsequent to the filing of the complaint." Plaintiff explains that he alleged in the Complaint that Dr. Hirsch and Lt. Traynham violated his Eighth Amendment rights by denying him medical care and that such denial continued even after the filing of this action. Thus, plaintiff seeks to add these continuing allegations to the Complaint.
The local rule provides that resolution of a motion for reconsideration is governed by a clearly erroneous or contrary to law standard. Motions for reconsideration must be filed within ten court days from the date of service of the ruling on the parties.
Plaintiff's motion for reconsideration is untimely as it was filed well beyond the ten days allotted by the local rule. Furthermore, the court finds no error in the Magistrate Judge's ruling. Plaintiff has made clear that he seeks to add new instances of alleged constitutional violations that are identical in nature to those alleged in the Complaint. However, the Prison Litigation Reform Act not only requires that each claim be exhausted, but that each allegation of a constitutional violation be exhausted prior to filing the Complaint. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir 2002). Thus, even if each of the named defendants allegedly violated plaintiff's constitutional rights in the same manner but on separate occasions after the Complaint was filed, each instance constitutes a new claim that must be exhausted prior to filing the action. The similarity of the events does not overcome this exhaustion requirement. This rule of exhaustion was explained in the Magistrate Judge's Order denying plaintiff's motion to supplement. Therefore, that Order is neither clearly erroneous nor contrary to law.
ACCORDINGLY:
1. Plaintiff's motion for reconsideration is denied.
IT IS SO ORDERED.