Wright v. Gonzales

Filing 43

ORDER Denying 42 Motion for Reconsideration, signed by District Judge Anthony W. Ishii on 3/27/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND WRIGHT,

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Plaintiff

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CASE NO. 1:05-CV-1326 AWI JLT
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
SGT. Y. A. GONZALES,

(Doc. No. 42)

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Defendant

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This case was brought by pro se Plaintiff Raymond Wright in 2005. Plaintiff was

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incarcerated at the time, and his lawsuit was brought under 42 U.S.C. § 1983 based on events

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occurring at the Pleasant Valley State Prison.
On July 13, 2009, the Magistrate Judge issued a Findings and Recommendation (“F&R”)

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to dismiss the action with prejudice for failure to prosecute. The Magistrate Judge had previously

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dismissed Plaintiff’s Second Amended Complaint with leave to amend, but Plaintiff did not file an

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amended complaint. On August 19, 2009, the Court adopted the Findings and Recommendation

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and dismissed the case. Plaintiff had not responded to the July 2009 F&R. Judgement was

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entered in favor of Plaintiff and against Defendant on August 19, 2009.

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On May 6, 2014, Plaintiff filed a motion for reconsideration of the dismissal.1 See Doc.

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No. 42. Plaintiff argues that he did not receive the F&R or the order adopting the F&R. See id.

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Plaintiff states that a County General Relief officer retaliated against him by not giving him his

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mail. See id. Had Plaintiff received the orders, he states that he would have filed an amended

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This case was originally assigned to District Judge Wanger. On March 26, 2015, it was reassigned to the
undersigned.

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complaint. See id. Plaintiff has since been returned to prison, and would have informed the Court

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of his new address, but he could not remember the case number for this case. See id.

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Discussion

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Federal Rule of Civil Procedure 60(b) provides various grounds for granting relief from a

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judgment. See Fed. R. Civ. P. 60(b). A party has one year from the date of judgment to seek

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relief under Rule 60(b)(1) for mistake, inadvertence, surprise, or excusable neglect, Rule 60(b)(2)

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for newly discovered evidence, and Rule 60(b)(3) for fraud or misconduct by an opposing party.

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See Fed. R. Civ. P. 60(c)(1). For relief under Rules 60(b)(4), 60(b)(5), and 60(b)(6), a party must

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file a motion “within a reasonable time.” See id.

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Plaintiff’s allegation that he did not receive pertinent Court orders is troubling. However,

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this case closed nearly six years ago. From April 10, 2009 to May 5, 2014, a period of about five

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years, Plaintiff made no effort to communicate with the Court. Had he done so, he would have

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discovered the status of his case. In this case, there is no evidence that justifies the approximately

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five year delay between the August 19, 2009 judgment and the May 6, 2014 motion for

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reconsideration. Because Plaintiff’s nearly five year delay is not reasonable, reconsideration will

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be denied. See Fed. R. Civ. P. 60(c)(1); Lee v. Marvel Enters., Inc., 765 F.Supp.2d 440, 450 (S.D.

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N.Y. 2011).

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ORDER
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration is
DENIED.

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IT IS SO ORDERED.
Dated: March 27, 2015
SENIOR DISTRICT JUDGE

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