United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

VINCENT ROSENBALM,

Plaintiff,

v.

EDWARD FOULK; et al., 

Defendants. /

No. C 09-2208 SI (pr)

ORDER 

Vincent Rosenbalm, formerly an inmate at Napa State Hospital and now residing in

Oregon, filed a pro se civil rights action under 42 U.S.C. § 1983. The court dismissed his

original complaint with leave to amend. He filed an amended complaint, which the court

reviewed under 28 U.S.C. § 1915A and dismissed without further leave to amend. Several

claims were dismissed without prejudice as improperly joined and several claims were dismissed

for failure to state a claim upon which relief could be granted. Rosenbalm then filed a motion

for reconsideration and submitted a proposed second amended complaint.

A motion for reconsideration under Federal Rule of Civil Procedure 59(e) "'should not

be granted, absent highly unusual circumstances, unless the district court is presented with newly

discovered evidence, committed clear error, or if there is an intervening change in the law."'

McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). In his

motion, Rosenbalm repeats allegations about problems he encountered at Napa State Hospital,

but those claims were dismissed as improperly joined, see Order Of Dismissal, pp. 5-6, and he

repeats allegations about problems in the criminal case against him, but those claims were

Case 3:09-cv-02208-SI Document 24 Filed 08/23/10 Page 1 of 3
United States District Court

For the Northern District of California

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Rosenbalm argues that a new judge should be appointed because some of the mail allegedly

confiscated related to a judicial misconduct complaint against the undersigned. Motion For

Reconsideration, p. 3. The recusal request is denied as untimely . See 28 U.S.C. § 144. Rosenbalm

cannot wait until he receives an adverse ruling to seek recusal of a judge who he has known for more

than a year has been assigned to his case. Further, the allegation that a state hospital employee

interfered with mail pertaining to a judicial misconduct complaint does not show any cause for recusal

of the target of the judicial misconduct complaint. Finally, the complaint and amended complaint did

not allege a claim for judicial misconduct against the undersigned. Although Rosenbalm has filed such

complaints in the past against the undersigned, those actions were assigned to another judge who

summarily dismissed them. See Rosenbalm v. Illston, C 08-2183 RMW (originally assigned to the

undersigned and then reassigned to Judge White); Rosenbalm v. Illston, C 08-2318 RMW; Rosenbalm

v. Illston C 08-3409 RMW. 

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dismissed for failure to state a claim upon which relief may be granted, see id. at 7-9.

Rosenbalm has not shown newly discovered evidence, clear error by the court or any change in

the law. Accordingly, the motion for reconsideration is DENIED. (Docket # 22.)1

 

Rosenbalm's second amended complaint will not be filed. After final judgment has been

entered, the district court may consider a Rule 15 motion to amend only if the judgment is first

reopened pursuant to a motion under Federal Rule of Civil Procedure 59 or 60. See Lindauer

v. Rogers, 96 F.3d 1355, 1357 (9th Cir. 1996). This is a high hurdle to overcome, because a

judgment is not properly reopened "'absent highly unusual circumstances, unless the district

court is presented with newly discovered evidence, committed clear error, or if there is an

intervening change in the controlling law.'" Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir.

2001) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). As

explained in the preceding paragraph, Rosenbalm has not shown any reason to reconsider and

reopen the judgment. The court will not grant leave for him to file a second amended complaint.

He can file a new action asserting claims that were dismissed as improperly joined (as explained

/ / /

/ / /

/ / /

Case 3:09-cv-02208-SI Document 24 Filed 08/23/10 Page 2 of 3
United States District Court

For the Northern District of California

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in the Order Of Dismissal, p. 6), but he cannot circumvent joinder rules by serially presenting

unrelated claims in a single action through repeated amendment until he finds some claim that

can proceed against some defendant. An additional separate reason to disallow the proposed

second amended complaint is that Rosenbalm has submitted a pleading that disregards the court's

earlier orders: some claims ignore the directions in the Order of Dismissal With Leave To

Amend to link defendant(s) to claims and other claims ignore the explanation in the Order of

Dismissal that the claims concerning the criminal case cannot proceed.

IT IS SO ORDERED.

Dated: August 23, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

Case 3:09-cv-02208-SI Document 24 Filed 08/23/10 Page 3 of 3