Shepard v. Podsakoff et al

Filing 33

ORDER Denying Plaintiff's 32 Motion for Reconsideration, signed by District Judge Anthony W. Ishii on 5/9/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,
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Plaintiff,
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v.

1:12-cv-00495-AWI-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(ECF NO. 32)

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M. PODSAKOFF,
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Defendant.
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Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se. On October 30, 2015,

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the Court adopted the assigned magistrate judge’s findings and recommendations in full, and

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dismissed this action, without prejudice, because Plaintiff failed to obey a court order (Plaintiff

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failed to pay the $350 filing fee as ordered). (ECF No. 30).

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Approximately a year and a half later, on April 26, 2017, Plaintiff filed a “motion to re-

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open case, if filing fee could be payed [sic],” (ECF No. 32), which the Court construes as a

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motion to reconsider its order dismissing the action. Plaintiff states that he can now pay the filing

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fee, and asks that he be allowed to pay the filing fee and resume the case where it left off before it

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was closed. (Id.).

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Federal Rule of Civil Procedure 60(b) governs grounds for relief from an order:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). Notably, “[a] motion under Rule 60(b) must be made within a reasonable

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time--and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order

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or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).

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As to Rule 60(b)(6), Plaintiff “must demonstrate both injury and circumstances beyond his

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control that prevented him from proceeding with the action in a proper fashion.” Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008). Additionally, Rule 60(b)(6) “is to be used sparingly as

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an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary

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circumstances prevented a party from taking timely action to prevent or correct an erroneous

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judgment.” (Id.)

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Plaintiff’s motion will be denied. Plaintiff has not shown that he filed his motion within a

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reasonable time, and he has failed to show that he meets any of the above-mentioned reasons for

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granting relief from the order dismissing the case.

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Plaintiff waited approximately eighteen months to file this motion. As this is longer than

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a year, if Plaintiff is bringing this motion under Rule 60(b)(1)-(3), the motion is untimely. If

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Plaintiff is bringing it under Rule 60(b)(4)-(6), Plaintiff has failed to show that he brought it

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within a reasonable time. Even if the motion was filed within a reasonable time, Plaintiff has not

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alleged that there were circumstances beyond his control that prevented him from proceeding

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with the action in a proper fashion.

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It is possible that Plaintiff has misunderstood the Court’s prior order dismissing his case.

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When the Court dismissed the case without prejudice, what was meant was without prejudice to
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refiling, meaning that Plaintiff could file a new and separate lawsuit. The Court’s order did not

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mean that Plaintiff could later attempt to re-open this case once he obtained the appropriate filing

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fee.

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Accordingly, based on the foregoing, IT IS ORDERED that Plaintiff’s motion for
reconsideration is DENIED.

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IT IS SO ORDERED.
Dated: May 9, 2017
SENIOR DISTRICT JUDGE

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