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)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Abubakar Hussein Ahmed,
Plaintiff,

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ORDER

v.

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No. CV-16-00935-PHX-JJT

Arizona Department of Public Safety, et al.,

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Defendants.

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At issue is pro se Plaintiff Abubakar Hussein Ahmed’s Motion to Vacate

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Judgment (Doc. 9).

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I.

BACKGROUND

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Plaintiff filed his Complaint (Doc. 1) and Application for Leave to Proceed In

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Forma Pauperis (Doc. 2) on April 4, 2016. Plaintiff also filed a Motion to Allow

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Electronic Filing. (Doc. 3.) On April 26, 2016, the Court denied Plaintiff’s In Forma

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Pauperis Application after determining he had the ability to pay the Court’s fees. (Doc.

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7.) The Court ordered that Plaintiff pay the requisite fees within 30 days of entry of that

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Order. (Doc. 7.) Plaintiff failed to comply and the case was terminated on June 3, 2016.

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(Doc. 8.) Plaintiff now seeks to vacate that Order (Doc. 8), as well as the Court’s Order

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denying Plaintiff’s In Forma Pauperis Application (Doc. 7), and to obtain a ruling on his

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Electronic Filing Motion (Doc. 3).

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II.

ANALYSIS

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While Plaintiff cites several rules under which his motion is brought, Plaintiff

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chiefly seeks relief under Federal Rule of Civil Procedure Rule 60. See Fed. R. Civ. P.

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60. Under Rule 60, the court may relieve a party from a final judgment, order, or

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proceeding for specific, enumerated reasons. Id. However, a “motion under Rule 60(b)

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must be made within a reasonable time . . . and . . . no more than a year after the entry of

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the judgment . . . .” Fed. R. Civ. P. 60(c)(1). “What constitutes a ‘reasonable time’

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depends upon the facts of each case, taking into consideration the interest in finality, the

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reason for delay, the practical ability of the litigant to learn earlier of the grounds relied

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upon, prejudice to other parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981).

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Although Plaintiff’s Motion was brought in under a year—356 days from this Court’s

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Order and 318 from the Clerk’s termination of the action—it was not filed within a

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reasonable time. Plaintiff provides no adequate justification for the nearly year-long delay

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in seeking relief under any standard. While Plaintiff is pro se, and his pleadings construed

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broadly, “mistakes construing the rules do not usually constitute ‘excusable’ neglect.”

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Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993). This

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Circuit has made clear that “[p]ro se litigants must follow the same rules of procedure

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that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); see also

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Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (pro se litigants should not be

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treated more favorably than parties represented by attorneys); United States v. Flewitt,

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874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are subject to the same good faith

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limitations imposed on lawyers).

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Even were Plaintiff’s Motion brought in a timely manner, under Rule 60(b), a

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court may relieve a party from a final judgment or order only for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence;

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(3) fraud, misrepresentation, or misconduct by an opposing party; the judgment is void;

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(5) the judgment has been satisfied, released or discharged; or (6) any other reason that

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justifies relief. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). Plaintiff

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fails to assert the presence of any of the enumerated reasons justifying relief under

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Rule 60, or any other reason. Instead, Plaintiff only contends that the Court abused its

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discretion in denying his In Forma Pauperis Application without discussing his income,

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assets, expenses, and debts. (Mot. at 2.) Such an allegation, even if true, is not proper

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grounds for relief under Rule 60.

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III.

CONCLUSION

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The only ground upon which relief might plausibly be granted in Plaintiff’s favor

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under Rule 60(b) is for excusable neglect in not complying with the Court’s directive to

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pay fees. See Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009). The Court

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cannot conclude that Plaintiff has established excusable neglect given the Court’s

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targeted and clear Order instructing him when and what to file—which Plaintiff does not

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dispute. Plaintiff’s Motion provides no justification for his failure to comply with the

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Order, his delay in filing the current Motion, or his failure to file any timely motion for

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reconsideration. The Court concludes, therefore, that relief must not be granted under

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Rule 60(b). Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th

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Cir. 1997) (stating that party must show “extraordinary circumstances” to obtain relief

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under Rule 60(b)(6)).

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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.

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Honorable John J. Tuchi
United States District Judge

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