Warren v. Shawnego, et al

Filing 80

ORDER Denying 74 Motion for Relief from Judgment, With Prejudice, signed by District Judge Anthony W. Ishii on 4/22/13. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CARMON WARREN,

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CASE NO. 1:03-cv-06336-AWI-SKO PC

Plaintiff,

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v.

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ORDER DENYING MOTION FOR RELIEF
FROM JUDGMENT, WITH PREJUDICE

S. SHAWNEGO,

(Doc. 74)
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Defendant.
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I.

Procedural History

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Plaintiff Carmon Warren, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on September 29, 2003. This action, which was

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proceeding against Defendant Shawnego for violation of the Due Process Clause of the Fourteenth

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Amendment, Nonnette v. Small, 316 F.3d 872, 878-79 (9th Cir. 2002); Burnsworth v. Gunderson,

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179 F.3d 771, 774-75 (9th Cir. 1999), was dismissed on November 9, 2011, based on Plaintiff’s

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failure to exhaust the available administrative remedies, 42 U.S.C. § 1997e(a).

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On February 27, 2013, Plaintiff filed a motion seeking relief from judgment pursuant to

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Federal Rules of Civil Procedure 60(b)(1), (5), and (6). Defendant filed an opposition on March 13,

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2013, and Plaintiff filed a reply on April 15, 2013. Local Rule 230(l).

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Plaintiff’s motion, which was brought more than one year after judgment, is untimely under

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Rule 60(b)(1) and Rule 60(b)(5) is not applicable. Fed. R. Civ. P. 60(c)(1). Therefore, the Court

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will address Plaintiff’s motion under Rule 60(b)(6).

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II.

Legal Standard

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies

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relief. It is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be

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utilized only where extraordinary circumstances exist. Harvest v. Castro, 531 F.3d 737, 749 (9th

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Cir. 2008) (quotations marks and citation omitted). The moving party must demonstrate both injury

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and circumstances beyond his control. Id. (quotation marks and citation omitted). Further, Local

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Rule 230(j) requires, in relevant part, that Plaintiff show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such prior motion,

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or what other grounds exist for the motion,” and “why the facts or circumstances were not shown

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at the time of the prior motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,

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and “[a] party seeking reconsideration must show more than a disagreement with the Court’s

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decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its

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decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001); see also In

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re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989) (Rule 60(b)(6) may provide relief

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where parties were confronted with extraordinary circumstances but it does not provide a second

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chance for parties who made deliberate choices).

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III.

Discussion

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This action was dismissed, without prejudice, for failure to exhaust the available

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administrative remedies. 42 U.S.C. § 1997e(a); Payne v. Peninsula School Dist., 653 F.3d 863, 881

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(9th Cir. 2011), cert. denied, 132 S.Ct. 1540; Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.

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2006); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). (Doc. 51, 71.) In dismissing the

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action, the Court found that Plaintiff’s inmate appeal had been properly screened out as untimely

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based on Plaintiff’s failure to comply with the applicable procedures. Sapp v. Kimbrell, 623 F.3d

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813, 823-24 (9th Cir. 2010).
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Plaintiff now seeks to reopen this action based on evidence that he again attempted to appeal

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the events giving rise to his claim via the submission of a post-judgment inmate appeal on December

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19, 2011. Plaintiff alleges that he received a memorandum denying his appeal and he then submitted

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the appeal to the third and final level of review, where it was denied because the appeal had been

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cancelled.

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Under the regulations in effect at the time, appeals were required to be submitted within

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fifteen working days of the event being appealed, Cal. Code Regs., tit. 15, §§ 3084.1, 3084.2(a), and

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Plaintiff was required to comply with all procedural rules, Woodford v. Ngo, 548 U.S. 81, 83-84, 126

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S.Ct. 2378 (2006); Sapp, 623 F.3d at 821. Given that the events in this action occurred between June

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and August 2002 and Plaintiff’s initial appeal was screened out as untimely in December 2002, it

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is extraordinarily unlikely that Plaintiff properly exhausted his claim post-judgment and his

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allegations and exhibits do not indicate that he did. (Motion, Doc. 74, p. 2; Reply, Doc. 78, pp. 9,

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24.) Thus, it appears Plaintiff is in the same position he was in when this action was dismissed:

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Plaintiff has been unable to properly exhaust his claim. Woodford, 548 U.S. at 83-84; Sapp, 623

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F.3d at 821.

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Additionally, Defendant was entitled to dismissal of this action based on Plaintiff’s failure

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to properly exhaust prior to filing suit, Payne, 653 F.3d at 881; Vaden, 449 F.3d at 1051; Wyatt, 315

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F.3d at 1119, and assuming for the sake of argument that Plaintiff succeeded properly exhausting

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post-judgment, he is not entitled to have this action reopened, Fed. R. Civ. P. 60(b)(6); Harvest, 531

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F.3d at 749. Plaintiff’s recourse would be limited to filing a new action, if proper exhaustion

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occurred.

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IV.

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Order
Based on the foregoing, Plaintiff’s motion to set aside judgment, filed on February 27, 2013,

is HEREBY DENIED, with prejudice.

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IT IS SO ORDERED.

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Dated:
0m8i78

April 22, 2013
SENIOR DISTRICT JUDGE
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