Robinson v. Davey et al

Filing 90

FINDINGS and RECOMMENDATIONS, Recommending that Plaintiff's 88 Motion to Reopen Case be Denied signed by Magistrate Judge Gary S. Austin on 01/05/2022. Referred to Judge Drozd; Objections to F&R due within Fourteen-Days. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY L. ROBINSON,
Plaintiff,

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vs.

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DAVE DAVEY, et al.,
Defendants.

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1:17-cv-01524-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION TO REOPEN CASE BE DENIED
(Doc. No. 88.)
OBJECTIONS, IF ANY, DUE WITHIN 14
DAYS

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I.

BACKGROUND

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This civil rights action, filed under 42 U.S.C. § 1983 by Plaintiff Anthony L. Robinson,

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was dismissed, without prejudice, on December 2, 2021 due to Plaintiff’s failure to prosecute

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and failure to keep the court apprised of his current mailing address. (Doc. No. 86.) On January

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3, 2022, Plaintiff filed a motion for extension of time to respond to court deadlines which the

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court construes as a motion to reopen the case. (Doc. No. 88.)

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II.

MOTION TO REOPEN CASE

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A.

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Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration of a final

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judgment or any order where one of more of the following is shown: (1) mistake, inadvertence,

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surprise, or excusable neglect; (2) newly discovered evidence which, with reasonable diligence,

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could not have been discovered within twenty-eight days of entry of judgment; (3) fraud,

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misrepresentation, or misconduct of an opposing party; (4) voiding of the judgment; (5)

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satisfaction of the judgment; and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). A

Legal Standards

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motion for reconsideration on any of these grounds must be brought within a reasonable time,

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and no later than one year, of the entry of the judgment or the order being challenged. Id.

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“Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure

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are addressed to the sound discretion of the district court . . .” Allmerica Financial Life Insurance

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and Annuity Company v. Llewellyn, 139 F.3d 664, 665 (9th Cir. 1997).
Plaintiff’s Motion

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B.

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Plaintiff requests an extension of time “for righteous cause shown” to reply to any recent

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court proceedings and court orders, or any pleadings filed by the Defendants since August 3,

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2021. (Doc. No. 88 at 1:21.) Plaintiff reports that he was released on parole on August 3, 2021

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and now intends to prosecute this case. He asserts that he has not received any court orders

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through CDCR prison mail to Compton’s parole office since August 3, 2021. Plaintiff also

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informs the court of his current street address.

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Plaintiff does not present any basis under Rule 60 for reopening his case. Plaintiff did

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not receive mail from the court beginning in August 2021 because he failed to keep the court

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apprised of his change of address. Pursuant to Local Rule 183(b), “A party appearing in propria

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persona shall keep the Court and opposing parties advised as to his or her current address. If

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mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service,

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and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days

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thereafter of a current address, the Court may dismiss the action without prejudice for failure to

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prosecute.” In this case, more than eighty (80) days passed between the time Plaintiff’s mail was

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returned to the court and his case was dismissed for failure to prosecute. Moreover, more than thirty

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(30) additional days passed after the dismissal before Plaintiff notified the court of his current address.

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Based on this record the court should not grant Plaintiff’s motion to reopen this case.

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Plaintiff’s case was dismissed on December 2, 2021, without prejudice, and if he wishes to prosecute

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this case now he may file a new complaint.

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III.

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RECOMMENDATIONS AND CONCLUSION
Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion to reopen

this case, filed on January 3, 2022, be denied.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after the date of service of these findings and recommendations, any party may file

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

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and filed within ten (10) days after the date the objections are filed. The parties are advised that

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failure to file objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

January 5, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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