Davis v. Lynn et al

Filing 42

ORDER Denying Plaintiff's Motion To Vacate Judgment (Dkt. No. 41 ), signed by Judge Barry T. Moskowitz on 5/2/2011. (Fahrney, E)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7

FRESNO DIVISION

8
9

ANTHONY DAVIS, CDCR #-T-48683,

Civil No.

1:08cv01245-BTM (BLM)

10
Plaintiff,

11
vs.

12
13
14

ORDER DENYING PLAINTIFF'S
MOTION TO VACATE JUDGMENT

A. LYNN, Correctional Officer;
D. GONSALEZ, Correctional Officer;
F. FREGOSA, Correctional Officer,

(Dkt No. 41)

Defendants.

15
16
17

Plaintiff Anthony Davis ("Davis"), a state prisoner serving a life sentence for murder and

18

robbery, proceeding pro se and in forma pauperis with this 42 U.S.C. § 1983 civil rights action, alleged

19

Eighth Amendment violations arising from a September 15, 2007 incident at Pleasant Valley State

20

Prison involving claims of excessive force by the named correctional officers. By Order entered

21

March 30, 2011, the Court granted Defendants' Motion For Summary Judgment and judgment was

22

entered in their favor. (Dkt No. 39.) Davis now moves for an Order to vacate the judgment pursuant

23

to Fed. R. Civ. P. 59(e), a rule addressing motions for new trial or to "alter or amend a judgment" and

24

providing such a motion "must be filed no later than 28 days after the entry of the judgment." Davis

25

states the ground for his motion:

26
27
28

This March 29th, 2011 court order was erroneous and contrary to law; in
the court order, it states that plaintiff failed to file a[n] opposition to
defendant's motion for summary judgment. In fact, plaintiff filed his
opposition on 8-16-2010.
Dkt No. 41 1:14-19.
1

E.D. California 1:08cv1245 BTM (BLM)

1

However, contrary to Davis' representation, the docket shows no entry for any activity in this

2

case during the month of August 2010. In addition, although Davis states he attached a "memorandum

3

of law" to his motion to vacate the judgment, the filing is comprised of a single-page document.

4

Contrary to Davis' inference, summary judgment was not entered based on the absence of an Opposition

5

to the motion, even though Davis was informed that could happen in the Klingele / Rand notice the

6

Court provided him in the briefing schedule Order. The Court reached the merits of Davis' complaint

7

allegations in ruling on defendants' Motion For Summary Judgment, despite the absence of an

8

Opposition, because his Complaint was verified and his sworn deposition testimony was before the

9

Court. See Dkt No. 39, 6:9-18. The facts averred in those materials constituted admissible evidence

10

in support of his allegations for purposes of deciding the motion. See Keenan v. Hall, 83 F.3d 1083,

11

1090 n.1 (9th Cir. 1996). In deciding the motion, the Court applied FED. R. CIV. P. 56 standards to all

12

the evidence presented, construing it in the light most favorable to Davis as the non-moving party. Id.

13

8:27-28; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, in addition to the

14

merits result finding no constitutional violation had occurred in the defendants' use of force, the Court

15

also found the doctrine of qualified immunity would shield these defendants from liability for civil

16

damages even were the record construed to find a constitutional violation. Dkt No. 39, 11:8-20; see

17

Pearson v. Callahan, 555 U.S. 223, 129 S.Ct.808, 815 (2009). For all these reasons, Davis' Motion To

18

Vacate Judgment is DENIED.

19

IT IS SO ORDERED.

20

DATED: May 2, 2011

21
22

Honorable Barry Ted Moskowitz
United States District Judge

23
24
25
26
27
28
2

E.D. California 1:08cv1245 BTM (BLM)