Rhodes v. Fresno County, et al.

Filing 94

ORDER Denying Plaintiff's 93 Motion to Reopen Case signed by Magistrate Judge Stanley A. Boone on 07/31/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERCY LEE RHODES,

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Plaintiff,

Case No. 1:15-cv-01714-DAD-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO REOPEN CASE

v.
(ECF No. 93)
FRESNO COUNTY, et al.,
Defendants.

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On October 25, 2015, Plaintiff Percy Lee Rhodes filed the instant action pursuant to 42

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U.S.C. § 1983. (ECF No. 1.) On August 20, 2018, Plaintiff filed a notice of dismissal pursuant to

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Federal Rule of Civil Procedure 41(a). (ECF No. 89.) Defendants filed a statement of non-

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opposition to Plaintiff’s request for dismissal. (ECF No. 91.) On August 28, 2018, the Court issued

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an order directing the Clerk of Court to close this case pursuant to the parties’ stipulation for

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voluntary dismissal, and this case was closed the same day. (ECF No. 92.)

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Currently before the Court is Plaintiff’s motion to reopen case under Federal Rule of Civil

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Procedure 60(b), filed on July 26, 2019. (ECF No. 93.) Plaintiff contends that this case should be

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reopened because Plaintiff is still suffering from his injury and has been referred to Ambati

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Narayana, M.D. for “cystoscopy and treatment,” “cystoscopy and revise uret,” and “prostatectomy

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(TURP).” (Id.) Further, Plaintiff argues that he has newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time for trial under rule 59(b) and that
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Defendants will not suffer any prejudice if the case is reopened.

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A voluntary dismissal is a judgment, order, or proceeding from which Rule 60(b) relief can

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be granted. In re Hunter, 66 F.3d 1002, 1004-05 (9th Cir. 1995). Under Rule 60(b), a court may

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relieve a party from a final judgment or order if the moving party can show: (1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud,

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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment

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has been satisfied, released, or discharged; or (6) any other reason that justifies relief. Fed. R. Civ.

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P. 60(b).

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First, Plaintiff argues that this case should be reopened because he has newly discovered

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evidence. Under Rule 60(b)(2), a party may obtain relief from judgment where there is “newly

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discovered evidence that, with reasonable diligence, could not have been discovered in time to

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move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). “Relief from judgment on the

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basis of newly discovered evidence is warranted if (1) the moving party can show the evidence

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relied on in fact constitutes ‘newly discovered evidence’ within the meaning of Rule 60(b); (2) the

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moving party exercised due diligence to discover this evidence; and (3) the newly discovered

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evidence must be of ‘such magnitude that production of it earlier would have been likely to change

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the disposition of the case.’” Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th

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Cir. 2003) (citation omitted).

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In this case, while Plaintiff asserted that he has newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time for trial under Rule 59(b), Plaintiff

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has failed to identify what the newly discovered evidence is and that he exercised reasonable

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diligence. Further, Plaintiff has not demonstrated that his newly discovered evidence is of “such

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magnitude that production of it earlier would have been likely to change the disposition of the

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case.” Feature Realty, Inc., 331 F.3d at 1093. Therefore, Plaintiff’s request for relief from the

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voluntary dismissal pursuant to Rule 60(b)(2) is denied.

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Second, Plaintiff argues that this case should be reopened because he is “yet suffering from

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his injury and has been referred” to a doctor for specified medical services, which the Court

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interprets as a request for relief pursuant to Rule 60(b)(6), the “so-called catch-all provision” of
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Rule 60(b). Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). “A party moving for relief under

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Rule 60(b)(6) ‘must demonstrate both injury and circumstances beyond his control that prevented

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him from proceeding with the action in a proper fashion.’” Id. (citation omitted). Rule 60(b)(6)

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“is to be ‘used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized

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only where extraordinary circumstances prevented a party from taking timely action to prevent or

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correct an erroneous judgment.’” Id. (citation omitted).

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In this case, Plaintiff has not provided the Court with any evidence demonstrating that the

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voluntary dismissal of this case was due to any circumstances beyond his control. Therefore,

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Plaintiff’s request for relief from the voluntary dismissal pursuant to Rule 60(b)(6) is denied.
Accordingly, Plaintiff’s motion to reopen case under Rule 60(b), (ECF No. 93), is HEREBY

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DENIED.

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IT IS SO ORDERED.
Dated:

July 31, 2019
UNITED STATES MAGISTRATE JUDGE

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