Opinion
No. CIV S-04-1712 FCD DAD P.
August 31, 2007
ORDER
On August 29, 2007, defendants filed a request for reconsideration of this court's order filed August 17, 2007, granting defendants' motion to dismiss, in part, on the ground that plaintiff had failed to exhaust administrative remedies as to his first and second claims for relief, and denying defendants' motion to dismiss as to plaintiff's third claim for relief. The court found that plaintiff advanced a new argument in his objections that were not raised in defendants' motion to dismiss and thus, not addressed by the magistrate judge in his Findings and Recommendations. Specifically, plaintiff argued that defendants were deliberately indifferent to his medical needs. The court also noted that plaintiff's allegations regarding his third claim for relief are vague and not well pled.
Pursuant to E.D. Cal. L.R. 78-230(k), a party seeking reconsideration of the court's ruling on a motion must set forth the material facts and circumstances surrounding each motion, including "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon prior motion." E.D. Cal. L.R. 78-230(k)(3). Upon review of defendants' objections, defendants have failed to set forth facts demonstrating that they had moved to dismiss plaintiff's vaguely pled claim relating to deliberate indifference to his medical care.
Therefore, IT IS HEREBY ORDERED that, upon reconsideration, this court's order, filed August 17, 2007, is affirmed. The magistrate judge is directed to allow plaintiff leave to file a Third Amended Complaint to allege with greater specificity the grounds for his third claim for relief. Defendants may then reassert any applicable defenses, including failure to exhaust administrative remedies.
IT IS SO ORDERED.