Silva v. Gonzales et al

Filing 14

ORDER DENYING 13 Motion to Reopen signed by District Judge Lawrence J. O'Neill on 11/8/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS ADOLFO SILVA,

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Plaintiff,
v.
GONZALES, et al.,
Defendants.

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) Case No.: 1:13-cv-02064-LJO-BAM PC
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) ORDER DENYING MOTION TO REOPEN
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) (ECF No. 13)
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Plaintiff Louis Adolfo Silva (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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November 27, 2013, in the Central District of California. The matter was transferred to this district on

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December 19, 2013.

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On December 19, 2013, the Court ordered Plaintiff to either consent to or decline Magistrate

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Judge jurisdiction within thirty days. (ECF No. 5.) Thereafter, on December 23, 2013, the Court

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ordered Plaintiff to submit an application to proceed in forma pauperis on the correct form or pay the

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filing fee within forty-five days. (ECF No. 6.) On February 3, 2014, the Court issued a second order

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requiring Plaintiff to either consent to or decline Magistrate Judge jurisdiction within thirty days.

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(ECF No. 7.) Plaintiff failed to file the correct application to proceed in forma pauperis, pay the filing

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fee or consent to or decline Magistrate Judge jurisdiction.

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On March 25, 2014, the Magistrate Judge issued Findings and Recommendations that this

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action be dismissed, without prejudice, for failure to comply with the Court’s orders. The Findings

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and Recommendations were served on Plaintiff and contained notice that any objections were to be

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filed within fifteen (15) days. (ECF No. 10.) Plaintiff did not file objections.

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On April 17, 2014, the undersigned adopted the Findings and Recommendations in full and

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dismissed this action without prejudice. (ECF No. 11.) On the same date, judgment was entered.

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(ECF No. 12.)

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Nearly five months later, on September 8, 2014, Plaintiff filed the instant motion requesting

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the refiling of his action. Plaintiff reports that he could not send money because his counselor had a

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job change and it took more than a month before he got a new counselor. Plaintiff also claims that he

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was attacked by a correctional officer on April 29, 2014, and he was assaulted in his cell on June 25,

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2014. Plaintiff states that he would like to refile his lawsuit. (ECF No. 13, p. 1.)

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To the extent Plaintiff seeks relief from judgment, his request shall be denied. Pursuant to

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Federal Rule of Civil Procedure 60(b), the Court may relieve a party from final judgment for the

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specific reasons enumerated in the Rule or for any other reason that justifies relief. Relief under this

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latter provision requires the moving party to “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. Castro,

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531 F.3d 737, 749 (9th Cir. 2008) (internal quotations and citation omitted). The “Rule is to be used

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

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

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erroneous judgment.” Id. (internal quotations and citation omitted).

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Here, Plaintiff first asserts that he “could not send the money the first time” because his

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counselor “had a job change and it took over a month before [he] got a new [counselor].” (ECF No.

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13, p. 1.) Presumably, Plaintiff is referring to his inability to submit the required filing fee for this

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action. Plaintiff’s lack of a counselor for one month does not support relief from entry of judgment.

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As noted above, the Court granted Plaintiff forty-five (45) days—more than one month—to submit an

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in forma pauperis application or pay the filing fee. Plaintiff does not explain why he could not comply

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with the Court’s order during that time or why he could not request additional time to submit the filing
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fee or an in forma pauperis application. Plaintiff also does not explain why he could not comply with

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the Court’s orders to submit his consent or decline to Magistrate Judge jurisdiction.

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Plaintiff next asserts that he was attacked by a correctional officer on April 29, 2014, and that

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he was assaulted in his cell by correctional officers on June 25, 2014. Plaintiff reports that he has been

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“in and out of the Hole because staff members keep harassing [him] and attacking [him] since this law

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suit. . . .” (ECF No. 13.) The alleged attacks do not support relief from entry of judgment because the

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incidents occurred after judgment was entered in this action. (ECF No. 12.)

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Based on the above, Plaintiff has not shown any grounds entitling him to relief from judgment,

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and the motion is THEREFORE DENIED. As this action was dismissed without prejudice, Plaintiff is

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not precluded from initiating a new action by submitting a complaint for filing, along with a motion to

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proceed in forma pauperis or the $400.00 filing fee.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill

November 8, 2014

UNITED STATES DISTRICT JUDGE

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