MACK v. ONA

Full title: ANTHONY E. MACK, Plaintiff, v. MARSHA ONA, et al., Defendants

Court: United States District Court, E.D. California

Date published: Jun 25, 2009

No. CIV S-05-2134-MCE-CMK-P (E.D. Cal. Jun. 25, 2009)

Opinion

No. CIV S-05-2134-MCE-CMK-P.

June 25, 2009

ORDER

MORRISON ENGLAND JR., District Judge

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is a motion for reconsideration (Doc. 121) of the Magistrate Judge's May 5, 2009, order denying Plaintiff's request for the appointment of counsel, and a motion for reconsideration (Doc. 127) of the Magistrate Judge's May 19, 2009, order denying Plaintiff's request for leave to amend.¹

1 Plaintiff titled his pleadings as motions to vacate an order. The court will construe his motions as requests for reconsideration of a magistrate judge's order.

Pursuant to Eastern District of California Local Rule 72-303(f), a magistrate judge's order shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the court finds that it does not appear that the magistrate judge's rulings were clearly erroneous or contrary to law.

As to Plaintiff's request for reconsideration of the order denying him appointment of counsel, the Magistrate Judge's order was not clearly erroneous or contrary to law. While Plaintiff's case may be difficult to prosecute given his medical condition, housing status, and claims he is raising, his case and situation is not unique or exceptional. The May 5, 2009, order is, therefore, affirmed.

As to Plaintiff's request for reconsideration of the order denying him leave to amend his complaint, again, the Magistrate Judge's order was not clearly erroneous or contrary to law, and is, therefore, affirmed. At the time Plaintiff filed his original request for leave to file an amended complaint, leave was not required. To the extent Plaintiff is arguing that he should still be allowed to file an amended complaint as of right without leave of court pursuant to Rule 15(a)(1) because one defendant has not filed a responsive pleading, Plaintiff's argument is unavailing. Responsive pleadings have been filed by all other remaining defendants in this case, and therefore, leave of court is required before Plaintiff may file an amended complaint. See Fed.R.Civ.Proc. 15(a)(2).

Accordingly, IT IS HEREBY ORDERED that:

1. The motions for reconsideration (Doc. 121, 127) are denied; and

2. The Magistrate Judge's May 5, 2009, and May 19, 2009, orders are affirmed.