Wooten v. California Dept. of Corrections et al

Filing 38

ORDER Denying Plaintiff's Motion for Reconsideration 35 , 37 , per Fed.R.Civ.P. 60(b)(1), signed by Chief Judge Lawrence J. O'Neill on 5/7/16. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY E. WOOTEN,

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Plaintiff,

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v.
CALIFORNIA DEPT. OF
CORRECTIONS, et al.,

Case No. 1:13-cv-00570-LJO-JLT (PC)
ORDER DENYING PLAINTIFF'S REQUESTS
FOR RECONSIDERATION PER FED. R. CIV. P.
60(b)(1)
(Docs. 35, 37)

Defendants.

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Plaintiff, Gregory E. Wooten, is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. This action was

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closed on December 2, 2015 because Plaintiff failed to file an opposition to Defendants’ motion

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for summary judgment, despite being ordered to do so. (Docs. 32, 33.) Some three months after

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the case was closed, Plaintiff filed a motion for an extension of time to file his opposition to

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Defendants’ motion for summary judgment (Doc. 35) and then on April 29, 2016, Plaintiff filed

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another motion seeking to excuse his failure to obey orders from this Court and prosecute this

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action, desiring direction as to how he should proceed (Doc. 37). These motions are construed as

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motions for reconsideration of the order that dismissed this action.

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The history that led up to dismissal of this action is straightforward. On August 3, 2015,

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Defendant filed a motion for summary judgment. (Doc. 27.) On August 5, 2015, the Court

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issued the Second Informational Order notifying Plaintiff of the requirements to oppose a motion
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for summary judgment and that an opposition or statement of non-opposition must be filed within

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twenty-one days of the date Defendant’s filed their motion for summary judgment. (Doc. 29.)

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Plaintiff filed neither within the requisite time. On September 29, 2015, the Court ordered

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Plaintiff to file an opposition or a statement of non-opposition to Defendant’s motion for

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summary judgment within twenty-one days of the date that order issued. (Doc. 30.) More than

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twenty-one days passed and Plaintiff failed to file an opposition, a statement of non-opposition, or

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to respond in any way to Defendant’s motion for summary judgment or to the September 29,

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2015 order. Thus, on November 3, 2015, the Magistrate Judge issued findings and

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recommendations for the action to be dismissed because of Plaintiff's failure to prosecute which

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was served on Plaintiff that same day and contained notice that any objections to it were to be

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filed within twenty-one days. (Doc. 31.) Plaintiff did not file any objections and an order

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adopting the findings and recommendation, which dismissed the action, issued on December 2,

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2015 and judgment was entered that same day. (Docs. 32, 33.)

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Rule 60(b) of the Federal Rules of Civil Procedure provides that A[o]n motion and upon

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such terms as are just, the court may relieve a party . . . from a final judgment, order, or

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proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence could not have been discovered in

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time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by

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an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.@

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Motions under Rule 60(b) "must be made within a reasonable time -- and for reasons (1), (2), and

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(3) no more than a year after the entry of the judgment or order or the date of the proceeding."

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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted)

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(addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both

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injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation

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omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown"
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previously, "what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown" at the time the substance of the order which is objected to was considered.
“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original).
After seven months of unresponsiveness, Plaintiff seeks “grace” from this Court to reopen

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and allow him to proceed on his claims in this action. Plaintiff attempts to justify his neglect of

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this action by stating that when he was released from custody in California, on a date which he

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does not disclose, he returned to Atlanta, Georgia where he lived with a friend whose lease

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agreement did not allow Plaintiff to receive any mail at that address. Then, on September 15,

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2015,1 Plaintiff was arrested and spent approximately five months in the Hall County Jail.

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Plaintiff asserts that these circumstances amounted to “hardship” and “poor adjustment to

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society” which should excuse his failure to prosecute this action.

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Neither of these circumstances were beyond Plaintiff’s control. Harvest, 531 F.3d at 749.

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Plaintiff could have obtained a Post Office Box at which to receive mail and correspond with this

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court and refrained from activities which led to his arrest in Georgia. Further, the First

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Informational Order issued within days of Plaintiff’s filing this action. (Doc. 3.) It notified

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Plaintiff that all court deadlines are strictly enforced and that he must request extensions of time

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before any established deadlines lapse -- which Plaintiff did not do. It further stated that Plaintiff

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has an affirmative duty to keep the Court and opposing counsel apprised of his address, which

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Plaintiff also failed to do. Plaintiff’s difficult circumstances since his release are unfortunate, but

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are insufficient to justify reconsideration of the order dismissing this action.

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This date is notably after Plaintiff’s opposition to Defendants’ motion for summary judgment
was due.
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In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the December 2, 2015 order which dismissed this action as well as the findings and

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recommendation that issued on November 3, 2015, which the December 2, 2015 adopted, to be

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supported by the record and proper analysis.

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Accordingly, Plaintiff’s motions for reconsideration, filed on March 16, 2016 (Doc. 35)

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and April 27, 2016 (Doc. 37), is HEREBY DENIED and any objections based thereon are

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OVERRULED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

May 7, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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