Herman D. Shead v. Vang et al

Filing 110

ORDER On Defendant's Rule 60(b) Motion (Doc.No. 109 ), signed by District Judge Anthony W. Ishii on 8/12/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HERMAN D. SHEAD,

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Plaintiff

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v.

CASE NO. 1:09-cv-00006-AWI-SKO
ORDER ON DEFENDANT’S RULE 60(b)
MOTION

C/O VANG et al.,
(Doc. No. 109)

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Defendant

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The instant motion arises from a 42 U.S.C. § 1983 case in which prisoner Herman D.

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Shead (“Plaintiff”), proceeding pro se, alleges that Defendant Vang (“Defendant”) employed

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excessive force while subduing him. On October 1, 2013, the Court granted Defendant’s motion

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to dismiss pursuant to Rule 16(f) and 41(b). See Court’s Docket Doc. No. 98. On May 8, 2015,

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Plaintiff filed this Rule 60(b) motion, alleging that his counsel both abandoned him and misled

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him to believe that he was still being represented. See Doc. 105 p. 3. Pursuant to Rule 60(b)(6),

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Plaintiff requests that the Court vacate its October 1, 2013 dismissal order and allow him to

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prosecute his case.1 For reasons discussed below, Plaintiff’s motion will be granted.

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FACTUAL BACKGROUND

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The Court refers the parties to previous orders for a complete chronology of the

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proceedings. Plaintiff filed the current motion on May 8, 2015. See Doc. 105. On July 20, 2015,

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the Court ordered Plaintiff to submit additional briefing to demonstrate that the 19-month gap

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Plaintiff additionally requested relief under Rule 60(b)(1). See Doc. 105. However, this Court denied that motion as
untimely. See Doc. 106 p. 4.

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between the dismissal of his claim and the filing of this motion is “reasonable” for purposes of

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Rule 60(c). Plaintiff was ordered to provide the Court with relevant communications with his

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counsel (“Counsel”), any inquiries that he made to Counsel on the status of his case, and an

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explanation for why he filed this motion in May 2015, after learning that his case was closed late

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in January 2015. See Docs. 106, 108.

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On August 5, 2015, Plaintiff submitted additional briefing on the matters described above.

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See Doc. 109. Plaintiff alleges that Counsel failed to communicate with him after a May 2, 2013

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correspondence, in which Counsel requested the advance of $3,000 to cover the cost of upcoming

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depositions and transcript fees. Id. at 1-2, 5-6. Plaintiff replied that he believed that the

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Contingent Fee Agreement did not require him to advance such funds, and Counsel did not reply

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to the letter. Id. at 2. Believing any dispute over costs to be resolved, Plaintiff states that he had

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no reason to believe that Counsel was not representing him from May 2013 forward. Id. In

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reality, Plaintiff’s case was dismissed on October 1, 2013. See Doc. 99.

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Plaintiff alleges that he unsuccessfully attempted to reach Counsel by telephone from

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January 2014 to March 2014. See Doc. 109 p. 2. Plaintiff was unable to make calls during the

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day time due to his incarceration. Id. In March 2014, Plaintiff was placed in Administrative

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Segregation for approximately four months, where he was denied the opportunity to make phone

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calls. Id. Upon his release from Administrative Segregation, Plaintiff suffered from medical

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complications until May 2015. Id. at 3. Plaintiff alleges that he attempted to reestablish contact

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with Counsel from July to December 2014, but was unsuccessful in doing so. Id.

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At this point, Plaintiff learned that Counsel had relocated. Id. Plaintiff stated that he had

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“not heard from [Counsel] for months” in a January 2015 letter to the Clerk. See Doc. 96-98. The

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Deputy Clerk responded that his case had been closed since October, 2013. Id. at 43.

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Plaintiff alleges that Counsel did not notify him of their relocation or that his case had been

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dismissed. See Doc. 109 p. 3. Plaintiff further claims that he never had access to the Scheduling

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Order that set a series of deadlines for the parties. Id. at 2.

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PLAINTIFF’S MOTION

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Plaintiff’s Argument

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Plaintiff argues that “somewhere between August 22, 2012 and October 1, 2013, [his]

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attorney[s] Rios and Associates quit or abandon [sic] plaintiff without notice.” See Doc. 105. p. 2.

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This occurred, he claims, after Counsel requested advances to cover discovery costs, despite

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knowing of his indigent status. Id. Plaintiff further argues that Counsel’s failure to provide him

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with notice, and failure to formally withdraw, misled him into believing that Counsel was

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representing him in court. Id. at 3. Because Plaintiff at that time had no reason to believe that

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Counsel had abandoned him, he argues that he cannot be blamed for failing to act on his own

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behalf until May 8, 2015. Id. at 4. Plaintiff argues that relief under Rule 60(b)(6) is proper, and

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requests that this case be reopened. Id. at 2.

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Legal Standard

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Rule 60(b)(6) is an equitable remedy that applies when there is a reason not within the

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scope of Rule 60(b)(1)-(5) that justifies granting relief. Community Dental Servs. v. Tani, 282

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F.3d 1164, 1168 (9th Cir. 2002). A party invoking Rule 60(b)(6) must demonstrate “extraordinary

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circumstances which prevented or rendered him unable to prosecute his case.” Id. Petitioners

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normally bear the risk of negligent conduct on the part of their attorneys, which act as their agents.

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Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citing Link v. Wabash R. Co., 370 U.S. 626,

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634 (1962)). However, when an attorney abandons a client without notice, he or she severs this

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principal-agent relationship, and “no longer acts, or fails to act, as the client’s representative.”

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Maples v. Thomas, 132 S.Ct. 912, 922-23 (2012). Thus, a client “is excused from the

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consequences of his attorney’s conduct where that conduct effectively severs the principal-agent

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relationship.” Foley v. Biter, ---F.3d--- 2015 WL 4231283, at *3 (9th Cir. July 14, 2015).

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Accordingly, attorney abandonment may supply claimants with the “extraordinary circumstance”

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necessary to justify relief under Rule 60(b)(6). Mackey v. Hoffman, 682 F.3d 1247, 1252-53 (9th

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Cir. 2012).

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Movants must make Rule 60(b)(6) motions within a reasonable time. Fed. R. Civ. P.
60(c). This determination “depends on the facts of each case.” United States v. Holtzman, 762
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F.2d 720, 725 (9th Cir. 1985) (citing Washington v. Penwell, 700 F.2d 570, 572-573 (9th Cir.

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1981)). Courts consider “(1) the interest in finality, (2) the reason for the delay in filing, (3) the

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practical ability of the litigant to learn earlier of the grounds relied upon, and (4) prejudice to other

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parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981).

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Discussion

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In Foley v. Biter, the Ninth Circuit held that an incarcerated petitioner was entitled to relief

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under Rule 60(b)(6) on the basis that his attorney had abandoned him, despite the fact that he filed

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the Rule 60(b)(6) motion 14 months after learning that his habeas petition had been denied. Foley,

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---F.3d---, 2015 WL 4231283, at *5. There, the plaintiff filed a petition in April of 2001. Id. at

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*1. His attorney forgot that he was representing the plaintiff, and failed to notify him when his

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petition was denied in 2004. Id. Six years later, the plaintiff discovered that his petition had been

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denied when he inquired about the status of his case with a district court clerk. Id. The plaintiff

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inquired as to why he was not notified of his petition’s denial. Id. Nearly six months later, he

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requested that the court issue an order to his counsel to “show proof” that he notified plaintiff of

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his petition’s denial, and to show cause as to why he never notified plaintiff of the denial. Id.

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Fourteen months after learning that his petition had been denied, the plaintiff filed a Rule 60(b)(6)

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motion. Id.

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The Ninth Circuit reasoned that the attorney’s failure to notify the plaintiff that his petition

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had been denied and his failure to withdraw as counsel deprived the plaintiff of his opportunity to

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appeal the denial of his petition. Id. at *4. The plaintiff believed that he was being represented by

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the attorney despite the fact that the attorney had not been responding to his mail. Id. This

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conduct severed the principal-agent relationship between the plaintiff and his attorney, and the

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failure to preserve the plaintiff’s ability to appeal constituted abandonment. Id.

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The Ninth Circuit additionally held that the motion was timely. Id. at *5. It reasoned that

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the plaintiff took reasonable efforts to determine whether relief was available to him during the

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14-month period that elapsed between the point at which he became aware that his petition was

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denied and the point at which he filed his motion. Id. The Ninth Circuit considered the plaintiff’s

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lack of resources and legal training when ruling that he was entitled to relief. Id.
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In the instant case, Plaintiff alleges facts that entitle him to relief on the basis of Rule

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60(b)(6) and the Foley decision. Plaintiff believed that he was being represented because Counsel

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did not supply him with information indicating that they were withdrawing as his attorneys. See

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Docs. 105 p. 4; 109 p. 2-3. Counsel failed to formally withdraw, and Plaintiff was consequently

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not served with court documents informing him of the status of his case. Despite Counsel’s

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assurance that Plaintiff’s case was being litigated normally, Counsel failed to submit a confidential

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settlement conference statement, failed to show cause as to why sanctions should not be imposed

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for non-compliance with court directions, and ultimately failed to file a notice of opposition or

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non-opposition to the Defendants’ motion to dismiss. See Doc. 106 p. 2-3. The Court dismissed

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Plaintiff’s case accordingly. See Doc. 98.
Furthermore, Plaintiff’s motion is timely. The 19 month period that elapsed between the

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dismissal of Plaintiff’s case and the filing of the motion at hand, is far exceeded by the 7-year gap

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in Foley. Doc. 106 p. 5. Between the October 2013 dismissal of the case and the May 2015

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Motion for Reconsideration, Plaintiff alleges that he unsuccessfully attempted to call Counsel for

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two months. See Doc. 109 p. 2. His confinement rendered him unable to make phone calls in the

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mornings and evenings. Id. Plaintiff additionally alleges that he was placed in Administrative

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Segregation for 3 to 4 months, where he was denied access to a telephone. Id. Upon his release

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from Administrative Segregation, Plaintiff allegedly suffered from medical complications for over

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10 months. Id. at 3. After six months of fruitless attempts at contacting Counsel, Plaintiff

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inquired about the status of his case with the Court in January 2015, at which point he discovered

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that his case had been dismissed in October 2013. See Doc. 105 p. 2. These extenuating

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circumstances and Plaintiff’s attempts to reach Counsel render the 19-month delay in the filing of

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this Motion for Reconsideration reasonable. See Foley, ---F.3d---, 2015 WL 4231283, at *5

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Before his case was dismissed, Plaintiff was proceeding with an 8th Amendment claim of

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excessive force against Defendant Vang. Plaintiff’s Rule 60(b)(6) will be granted, and he will be

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permitted to proceed on this cognizable claim only. The Court will refer this matter to the

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Magistrate Judge for further proceedings and scheduling.

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ORDER

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Accordingly, it is HEREBY ORDERED that:

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(1) Plaintiff’s motion under Rule 60(b)(6) is GRANTED;

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(2) The matter is REFERRED to the Magistrate Judge for further proceedings and

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scheduling.

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IT IS SO ORDERED.
Dated: August 12, 2015
SENIOR DISTRICT JUDGE

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