Herring v. Clark et al

Filing 116

ORDER GRANTING 113 , 115 Plaintiff's Motion for Relief From Judgment; ORDER VACATING 112 Judgment and 111 Order Dismissing Action; ORDER VACATING 110 Order Requiring Plaintiff to Respond to Defendants' Motion for Summary Judgment; ORDER STRIKING 107 Motion for Summary Judgment as Duplicative; and ORDER REFERRING Case Back to the Magistrate Judge to Rule on Pending Issues, signed by District Judge Lawrence J. O'Neill on 5/12/2011. CASE REOPENED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARVEY HERRING III,

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1:05-cv-00079-LJO-SMS PC

Plaintiff,

ORDER GRANTING PLAINTIFF’S
REQUEST FOR RELIEF FROM
JUDGMENT, PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 60(b)(1)

v.
MIKE CLARK, et al.,

[Docs. 113, 115]
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Defendants,
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Harvey Herring III (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the
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complaint commencing this action on January 19, 2005. (Doc. 1.) On January 21, 2010, an
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order issued requiring Plaintiff to file an opposition, or statement of non-opposition to
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Defendants’ motion for summary judgment, within twenty-one days. (Doc. 110.) More than
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forty days passed without Plaintiff filing an opposition or statement of non-opposition, or
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otherwise responding such that an order issued dismissing the action with prejudice for
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Plaintiff’s failure to obey a court order and failure to prosecute. (Doc. 111.)
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On May 26, 2010, Plaintiff filed a notice and motion to set aside the order and be relieved
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from judgment, pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure. (Doc. 113.)
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In his motion, Plaintiff states under penalty of perjury that he never received the January 21, 2010
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order, was unaware of its existence, and therefore was unable to respond to it. Plaintiff requests
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to be relieved from judgment based on inadvertent mistake.
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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and upon
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such terms as are just, the court may relieve a party or a party’s legal representative from a final
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judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
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excusable neglect; . . . or (6) any other reason justifying relief from the operation of judgment.”
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In the instant action, Plaintiff’s declaration shows that he did not receive the order requiring him

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to file an opposition or declaration of non-opposition. It would be unjust to uphold judgment

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against Plaintiff for Plaintiff’s failure to respond to an order that he never received. The Court

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finds that Plaintiff is entitled to relief from judgment and grants Plaintiff’s motion.

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Further, upon review of the record, the motion for summary judgment, filed July 28, 2009

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(Doc. 107), is stricken from the record as it is duplicative of Defendants motion for summary

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judgment, filed July 9, 2008 (Doc. 75), which has been fully briefed under Local Rule 230(l). It

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is noted that there is a motion to quash and a request to modify the scheduling order pending

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which, along with dispositive motions, are appropriately referred back to the Magistrate Judge

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for rulings.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion for relief from judgment, filed May 26, 2010, is
GRANTED;

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2.

the judgment, entered March 4, 2010, is VACATED;

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3.

the order dismissing the action with prejudice for Plaintiff’s failure to obey

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a court order and failure to prosecute, issued March 4, 2010, is

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VACATED;

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4.

the order requiring Plaintiff to file an opposition or statement of non-

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opposition to Defendants’ motion for summary judgment, issued January

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21, 2010 is VACATED;

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5.

the motion for summary judgment, filed July 28, 2009 (Doc. 107)is

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duplicative of a previously filed motion and is hereby STRICKEN from

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the record; and

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6.

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IT IS SO ORDERED.

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Dated:
b9ed48

the case is referred back to the Magistrate Judge to rule on pending issues.

May 12, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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