Rosenblum v. Ellis, et al

Filing 94

ORDER Re Motion For Reconsideration (ECF No. 70 ), signed by District Judge Lawrence J. O'Neill on 9/14/2011. It is ORDERED that Plaintiff's motion for reconsideration of the October 20, 2010, order dismissing Defendants Vasquez and Robles is DENIED. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP JON ROSENBLUM,
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Plaintiff,
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v.
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C/O ELLIS,
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Defendant.
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____________________________________)

NO. 1:05-cv-01473 LJO GSA PC
ORDER RE MOTION FOR
RECONSIDERATION
(ECF No. 70)

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Plaintiff is a state prisoner proceeding pro se in this civil rights action. Pending before

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the Court is Plaintiff’s motion for reconsideration of the October 28, 2010, order adopting the

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findings and recommendations of the Magistrate Judge.

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On September 16, 2010, the Magistrate Judge entered findings and recommendations that

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Defendants Vasquez and Robles, be dismissed, along with Plaintiff’s supervisory liability claims.

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The findings and recommendations directed Plaintiff to file any objections within thirty days of

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the date of service of the findings and recommendations. Court records indicate that the findings

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and recommendations were served by the Clerk’s Office on September 16, 2010. On October 28,

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2010, the District Court adopted the findings and recommendations. On the same date, Plaintiff

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filed a motion for extension of time in which to file objections. Plaintiff seeks reconsideration of

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the order dismissing Defendants Vasquez and Robles on the ground that he timely filed

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objections.

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With respect to the timeliness of Plaintiff’s motion for extension of time, the motion is

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deemed filed on the date the prisoner “delivered the notice to prison authorities for forwarding to

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the [d]istrict [c]ourt.” Houston v. Lack, 487 U.S. 266, 270 (1988). The Ninth Circuit has held

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that the Houston v. Lack rule applies whenever the prisoner has utilized an internal prison mail

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system and the record allows the court to determine the date on which the filing was turned over

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to prison authorities. Caldwell v. Amend, 30 F.3d 1199, 1202 (9th Cir. 1994). When a pro se

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prisoner alleges that he timely complied with a procedural deadline by submitting a document to

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prison authorities, the district court must either accept that allegation as correct or make a factual

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finding to the contrary upon a sufficient evidentiary showing by the opposing party. See Faile v.

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Upjohn Co., 988 F.2d 985, 989 (9th Cir. 1993).

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Here, Plaintiff indicates that he delivered his motion for extension of time to prison

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authorities on October 20, 2010. A review of Plaintiff’s motion indicates that he served it on

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October 20, 2010. Pursuant to Federal Rules of Civil Procedure 6(a) and (d), Plaintiff had thirty

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days plus three days for mailing, or until October 19, 2010, in which to file objections. The

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record clearly indicates that Plaintiff placed his motion for extension of time in the mail on

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October 20, 2010. Plaintiff concedes that he submitted his document for mailing on October 20,

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2010. Plaintiff’s motion for extension of time to file objections is therefore untimely.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration of
the October 20, 2010, order dismissing Defendants Vasquez and Robles is denied.

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IT IS SO ORDERED.
Dated:
66h44d

September 14, 2011

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

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