McKinney v. Hubbard et al

Filing 17

ORDER DENYING Plaintiff's Motion for Relief From Order Dismissing Case and for Reconsideration for Court to Correct the Record Under Federal Rule of Civil Procedure 60(b) 16 , signed by Magistrate Judge Barbara A. McAuliffe on 12/20/16. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY MCKINNEY, 12 13 14 Plaintiff, v. S. HUBBARD, et al. 15 Case No. 1:09-cv-02096-BAM (PC) ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM ORDER DISMISSING CASE AND FOR RECONSIDERATION FOR COURT TO CORRECT THE RECORD UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b) Defendants. (ECF No. 16) 16 17 18 I. Background 19 Plaintiff Gregory McKinney (“Plaintiff”) is a state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on 21 December 2, 2009. (ECF No. 1.) Plaintiff filed a consent to magistrate judge jurisdiction on 22 December 21, 2009. (ECF No. 5.) 23 On October 18, 2011, the Court dismissed this action with prejudice for failure to state a 24 claim upon which relief may be granted under section 1983, and noted that the dismissal was 25 subject to the “three-strikes” provision in 28 U.S.C. § 1915(g). (ECF No. 13.) A judgment closing 26 the case was entered on the same day. (ECF No. 14.) On October 26, 2011, the mail containing 27 the order and judgment that had been sent to Plaintiff was returned as undeliverable. 28 On May 9, 2014, Plaintiff filed a notice of change of address with the Court. (ECF No. 1 1 15.) On June 20, 2016, Plaintiff filed the instant motion, requesting relief from the October 18, 2 2011 order dismissing his case. Plaintiff requests relief under Federal Rules of Civil Procedure 3 60(b)(1), (3), and (6), and argues that he is entitled to reconsideration at this time because he did 4 not discover until February 2, 2016 that his case had been dismissed. Plaintiff states that on 5 January 1, 2016, he submitted a letter to the Clerk’s office inquiring about the status of his case, 6 and that he received a letter from the Clerk’s office on February 2, 2016,1 indicating that it had 7 been closed on October 18, 2011. Plaintiff argues that extraordinary circumstances exist for 8 granting the motion for reconsideration, and that he has newly discovered evidence that prison 9 officials at Kern Valley State Prison violated procedures for processing incoming confidential 10 mail. (ECF No. 16.) 11 II. 12 Motion for Reconsideration Rule 60(b) A. Legal Standard 13 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 14 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 15 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 16 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 17 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 18 Fed. R. Civ. P. 60(b). Motions made under Rule 60(b) must be made within a reasonable time, 19 “and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or 20 date of the proceeding.” Fed. R. Civ. P. 60(c)(1). “What constitutes ‘reasonable time’ depends 21 upon the facts of each case, taking into consideration the interest in finality, the reason for delay, 22 the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the 23 other parties.” Lemoge v. United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009) (quoting Ashford 24 v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam)). 25 B. Discussion Plaintiff’s motion for reconsideration is untimely, and must be denied. Insofar as Plaintiff 26 27 28 1 The Clerk’s Office received and responded to Plaintiff’s letter on February 8, 2016. (ECF No. 16, Ex. B.) 2 1 seeks relief under Rules 60(b)(1) and (3), he failed to file the present motion within a year after 2 the judgment was entered. Fed. R. Civ. P. 60(c)(1); see Ackermann v. United States, 340 U.S. 3 193, 197 (1950) (denying reconsideration under Rule 60(b)(1) because the judgment was more 4 than four years old); Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984) (denying 5 reconsideration under Rule 60(b)(3) because the judgment was almost two years old). 6 Plaintiff filed the instant motion more than five years after the dismissal and entry of 7 judgment in this case. Indeed, after the filing of his first amended complaint in October 2010, 8 Plaintiff did not contact the Court again until May of 2014, when he updated his mailing address. 9 Then, Plaintiff did not contact the Court again until February of 2016, almost two years after he 10 updated his address, and nearly six years after filing his amended complaint. Plaintiff offers no 11 credible explanation for his lack of inquiry about the status of his case for six years, including the 12 more than five-year period after dismissal and entry of judgment. Although Plaintiff alleges that 13 prison officials interfered with the processing of his mail, he fails to provide any explanation of 14 how they prevented him from contacting the Court. He also fails to explain how he was otherwise 15 unable to contact the Court during the five years following dismissal of this action. Plaintiff 16 appears to have been fully able to contact the Court and inquire about his case at any time during 17 the past five years, but failed to do so. 18 Plaintiff’s motion is also untimely under Rule 60(b)(6). See McKinney v. Boyle, 447 F.2d 19 1091, 1092 (9th Cir. 1971) (denying reconsideration under Rule 60(b)(6) when more than four 20 and half years had passed from entry of the judgment.) Taking into consideration the interest in 21 finality, the lack of reasons for Plaintiff’s extended delay, and the practical ability of Plaintiff to 22 contact the Court earlier, the Court finds Plaintiff’s delay in moving for reconsideration under 23 Rule 60(b)(6) unreasonable. Lemoge, 587 F.3d at 1196-97; Rodgers v. Watt, 722 F.2d 456, 459 24 (“there is a compelling interest in the finality of judgments which should not be lightly 25 disregarded”). 26 As noted, the Court entered judgment in this case more than five years ago. Although part 27 of the reason for Plaintiff’s delay in moving for reconsideration may be attributable to Plaintiff 28 not receiving the dismissal order in the mail, the Court finds that the primary reason for the delay 3 1 was Plaintiff’s failure to inquire sooner regarding the status of his case. Plaintiff had the ability 2 contact the Clerk’s office to learn the status of his case at any time after filing his amended 3 complaint, and he provides no credible explanation why he did not do so, including during the 4 five-year period after dismissal of this action. 5 Accordingly, Plaintiff’s motion for reconsideration under Federal Rules of Civil 6 Procedure 60(b)(1), (3), and (6) must be denied. Since the motion is untimely, the Court need not 7 reach its merits. 8 9 C. Conclusion and Order For the reasons stated, Plaintiff’s motion for relief from the Court’s October 18, 2011 10 order dismissing his case, and for reconsideration under Federal Rules of Civil Procedure 60(b) 11 (ECF No. 16), is HEREBY DENIED. 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara December 20, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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