Fairbanks v. Clark et al

Filing 23

ORDER DENYING Plaintiff's 21 Motion to Alter or Amend Judgment signed by Chief Judge B. Lynn Winmill on 8/10/2010. (Bradley, A)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA F R E S N O DIVISION

B Y R O N M. FAIRBANKS, C a s e No. 1:08-CV-186-BLW Plaintiff, ORDER v. K E N CLARK, Warden, and L. POLK, A s so c ia te Warden, Defendants.

P e n d in g before the Court is Plaintiff's Motion to Alter or Amend Order and J u d g m e n t. (Dkt. 21). On December 19, 2008, Defendants filed a Motion to Dismiss. (Dkt. 1 5 .) Plaintiff did not file a response to the Motion in the eight-month period that the M o tio n was pending. On August 12, 2009, the Court entered an Order and Judgment d is m is s in g this care for failure to prosecute. F iv e months later, Plaintiff filed his Motion to Alter or Amend. He asserts that he w a s incarcerated on a parole violation on June 26, 2009, and was unable to use the law lib ra ry or obtain the Court's address until December 29, 2009. However, Plaintiff fails to p ro v id e any explanation why he did not respond to the Motion to Dismiss between J a n u a ry 2009 (when the response was due) and June 2009.

ORDER - 1

Construing the Motion under Rule 60(b) because it was filed more than five m o n th s after entry of Judgment, the Court shall deny Plaintiff's Motion to Alter or A m e n d Judgment for lack of an adequate factual basis and Plaintiff's failure to act d ilig e n tly in the six-month period prior to his re-incarceration. Under Rule 60(b), a party is entitled to relief from judgment for the following reasons: (1) mistake, inadvertence, s u rp ris e , or excusable neglect; (2) newly discovered evidence; (3) fraud, m isre p re s e n ta tio n , or other misconduct of an adverse party; (4) the judgment is void; (5) th e judgment has been satisfied, released, or discharged; or (6) any other reason justifying re lie f from the operation of the judgment. See Fed. R. Civ. P. 60(b). Relief under the " c a tc h -a ll" provision of Rule 60(b)(6) should be granted only in extraordinary c irc u m s ta n c e s "as an equitable remedy to prevent manifest injustice," U.S. v. State of W a s h in g to n , 98 F.3d 1159, 1163 (9th Cir. 1996) (internal citation and punctuation o m itte d ). Here, Plaintiff has provided no facts showing that relief under any provision of R u le 60(b) is warranted. ORDER I T IS ORDERED that Plaintiff's Motion to Alter or Amend Judgment (Dkt. 21) is D E N IE D .

DATED: August 10, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER - 2