Ahmed v. Arizona Department of Public Safety et al

Filing 10

ORDER: IT IS ORDERED denying 9 pro se Plaintiff Abubakar Hussein Ahmed's Motion to Vacate Judgment (Doc. 9 ). IT IS FURTHER ORDERED denying Plaintiff's request for a ruling on his Motion to Allow Electronic Filing (Doc. 3 ) as moot. This action shall remain closed. (See attached Order for details). Signed by Judge John J Tuchi on 4/24/17.(JAMA)

Download PDF
1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Abubakar Hussein Ahmed, Plaintiff, 10 11 ORDER v. 12 No. CV-16-00935-PHX-JJT Arizona Department of Public Safety, et al., 13 Defendants. 14 At issue is pro se Plaintiff Abubakar Hussein Ahmed’s Motion to Vacate 15 16 Judgment (Doc. 9). 17 I. BACKGROUND 18 Plaintiff filed his Complaint (Doc. 1) and Application for Leave to Proceed In 19 Forma Pauperis (Doc. 2) on April 4, 2016. Plaintiff also filed a Motion to Allow 20 Electronic Filing. (Doc. 3.) On April 26, 2016, the Court denied Plaintiff’s In Forma 21 Pauperis Application after determining he had the ability to pay the Court’s fees. (Doc. 22 7.) The Court ordered that Plaintiff pay the requisite fees within 30 days of entry of that 23 Order. (Doc. 7.) Plaintiff failed to comply and the case was terminated on June 3, 2016. 24 (Doc. 8.) Plaintiff now seeks to vacate that Order (Doc. 8), as well as the Court’s Order 25 denying Plaintiff’s In Forma Pauperis Application (Doc. 7), and to obtain a ruling on his 26 Electronic Filing Motion (Doc. 3). 27 28 1 II. ANALYSIS 2 While Plaintiff cites several rules under which his motion is brought, Plaintiff 3 chiefly seeks relief under Federal Rule of Civil Procedure Rule 60. See Fed. R. Civ. P. 4 60. Under Rule 60, the court may relieve a party from a final judgment, order, or 5 proceeding for specific, enumerated reasons. Id. However, a “motion under Rule 60(b) 6 must be made within a reasonable time . . . and . . . no more than a year after the entry of 7 the judgment . . . .” Fed. R. Civ. P. 60(c)(1). “What constitutes a ‘reasonable time’ 8 depends upon the facts of each case, taking into consideration the interest in finality, the 9 reason for delay, the practical ability of the litigant to learn earlier of the grounds relied 10 upon, prejudice to other parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981). 11 Although Plaintiff’s Motion was brought in under a year—356 days from this Court’s 12 Order and 318 from the Clerk’s termination of the action—it was not filed within a 13 reasonable time. Plaintiff provides no adequate justification for the nearly year-long delay 14 in seeking relief under any standard. While Plaintiff is pro se, and his pleadings construed 15 broadly, “mistakes construing the rules do not usually constitute ‘excusable’ neglect.” 16 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993). This 17 Circuit has made clear that “[p]ro se litigants must follow the same rules of procedure 18 that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); see also 19 Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (pro se litigants should not be 20 treated more favorably than parties represented by attorneys); United States v. Flewitt, 21 874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are subject to the same good faith 22 limitations imposed on lawyers). 23 Even were Plaintiff’s Motion brought in a timely manner, under Rule 60(b), a 24 court may relieve a party from a final judgment or order only for the following reasons: 25 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; 26 (3) fraud, misrepresentation, or misconduct by an opposing party; the judgment is void; 27 (5) the judgment has been satisfied, released or discharged; or (6) any other reason that 28 justifies relief. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). Plaintiff -2- 1 fails to assert the presence of any of the enumerated reasons justifying relief under 2 Rule 60, or any other reason. Instead, Plaintiff only contends that the Court abused its 3 discretion in denying his In Forma Pauperis Application without discussing his income, 4 assets, expenses, and debts. (Mot. at 2.) Such an allegation, even if true, is not proper 5 grounds for relief under Rule 60. 6 III. CONCLUSION 7 The only ground upon which relief might plausibly be granted in Plaintiff’s favor 8 under Rule 60(b) is for excusable neglect in not complying with the Court’s directive to 9 pay fees. See Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009). The Court 10 cannot conclude that Plaintiff has established excusable neglect given the Court’s 11 targeted and clear Order instructing him when and what to file—which Plaintiff does not 12 dispute. Plaintiff’s Motion provides no justification for his failure to comply with the 13 Order, his delay in filing the current Motion, or his failure to file any timely motion for 14 reconsideration. The Court concludes, therefore, that relief must not be granted under 15 Rule 60(b). Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th 16 Cir. 1997) (stating that party must show “extraordinary circumstances” to obtain relief 17 under Rule 60(b)(6)). 18 19 20 21 22 IT IS THEREFORE ORDERED denying pro se Plaintiff Abubakar Hussein Ahmed’s Motion to Vacate Judgment (Doc. 9). IT IS FURTHER ORDERED denying Plaintiff’s request for a ruling on his Motion to Allow Electronic Filing (Doc. 3) as moot. This action shall remain closed. Dated this 24th day of April, 2017. 23 24 25 Honorable John J. Tuchi United States District Judge 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?