(PC) Smith v. Parriot et al

Filing 72

FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 71 Motion for Additional Fact Findings be Denied, signed by Magistrate Judge Gary S. Austin on 10/22/2022. Objections to F&R due within FOURTEEN Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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Plaintiff,

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1:19-cv-00286-JLT-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR ADDITIONAL FACT
FINDINGS BE DENIED

vs.
PARRIOT, et al.,

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(ECF No. 71.)

Defendants.

OBJECTIONS DUE WITHIN
FOURTEEN (14) DAYS

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I.

BACKGROUND

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Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 2,

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2022, the Court granted defendants’ motion for summary judgment on the grounds that Plaintiff

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failed to exhaust remedies and as barred by Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No.

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69.) Judgment was entered on September 2, 2022. (ECF No. 70.)

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On September 23, 2022, Plaintiff filed a motion titled “Motion for Additional Fact
Findings Per Rule 59 Fed. R. Civ. P.” (ECF No. 71.) The motion is unopposed.
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II.

LEGAL STANDARDS

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A.

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Federal Rule of Civil Procedure 60(b) permits a district court to relieve a party from a

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Rule 60(b)

final order or judgment on grounds of:

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(1)

mistake, inadvertence, surprise, or excusable neglect;

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(2)

newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b);
(3)

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fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;

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(4)

the judgment is void;

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(5)

the judgment has been satisfied, released, or discharged; it is based on an earlier

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judgment that has been reversed or vacated; or applying it prospectively is no

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longer equitable; or

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(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

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A Rule 60(b) motion must be made “within a reasonable time -- and for reasons (1), (2),

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

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proceeding.” Fed. R. Civ. P. 60(c)(1); see Hogan v. Robinson, 2009 WL 1085478, at *4 (E.D.

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Cal. Apr. 22, 2009 (Rule 60(b)(6) motion “filed over 18 months after judgment was entered, and

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over two years after Plaintiffs were put on notice of the facts and circumstances upon which they

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rely[ ]” was untimely); Swait v. Evans, 2008 WL 4330291, at *5– 6 (C.D. Cal. Sept. 22, 2008)

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(Rule 60(b) motions untimely where petitioner “failed to proffer any legally valid explanation

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for his two-year delay” in filing).
Rule 59(e) – Motion to Alter or Amend a Judgment

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B.

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A motion to alter or amend a judgment must be filed no later than 28 days after the entry

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of the judgment. Fed. R. Civ. P. 59(e). The purpose of Rule 59(e) is not to “give an unhappy

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litigant one additional chance to sway the judge. [A]rguments and evidence [that] were

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previously carefully considered by the Court, [ ] do not provide a basis for amending the
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judgment.” (McCullock v. Scharr, No. 19-CV-2110-DMS) 2022 U.S.Dist.LEXIS 21905, at *7

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(S.D.Cal. Feb. 5, 2022) (quoting Kilgore v. Colvin, No. 2:12-cv-1792-CKD, 2013

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U.S.Dist.LEXIS 144098, 2013 WL 5425313 at *1 (E.D. Cal. Sept. 27, 2013)).

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III.

PLAINTIFF’S MOTION

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Plaintiff requests the Court to make additional fact findings pursuant to the provisions of

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Rule 59 of the Federal Rules of Civil procedure. He seeks a court order ascertaining whether the

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de novo review of this case by the District Judge when the case was dismissed included review

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of the following with respect to Plaintiff’s underlying objections to defendants’ assertions that

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Plaintiff failed to exhaust remedies and that the case is barred by Heck.

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1) Compulsion order (ECF No. 42);

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2) Reply in regard to defendants’ opposition to motion to amend (ECF No. 40);

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3) Stay of proceedings (ECF No. 48);

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4) Stay of proceedings (ECF No. 62); and

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5) Motion for reconsideration (ECF No. 66).

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Plaintiff seeks clarification of such facts in order to ascertain if appeal in this matter is

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warranted for an abuse of discretion and/or clear error.

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Discussion

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Where the Court’s ruling has resulted in a final judgment or order, as here, a motion for

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reconsideration may be based either on Rule 59(e) (motion to alter or amend judgment), or Rule

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60(b) (motion for relief from judgment) of the Federal Rules of Civil Procedure. Faison v.

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Branstad, No. 22-CV-1063-MMA (MSB), 2022 WL 4490168, at *2 (S.D. Cal. Sept. 26, 2022)

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(citing see Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.

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1993)). A motion for reconsideration is treated as a motion to alter or amend a judgment

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under Rule 59(e) if it is filed within 28 days of entry of judgment, as Plaintiff’s motion here has

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been; otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order. Id.

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(citing see Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th

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Cir. 2001)).

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Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the

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district court enjoys considerable discretion in granting or denying the motion. Id. (citing Allstate

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Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011), citing McDowell v. Calderon, 197 F.3d

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1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam). Nevertheless, a motion under Rule 59(e)

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“should not be granted, absent highly unusual circumstances, unless the district court is presented

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with newly discovered evidence, committed clear error, or if there is an intervening change in

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the controlling law.” Id. at 1255. Further, “[a] motion for reconsideration ‘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.,

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571 F.3d 873, 880 (9th Cir. 2009), quoting Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000).

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“In general, there are four basic grounds upon which a Rule 59(e) motion may be granted:

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(1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment

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rests; (2) if such motion is necessary to present newly discovered or previously unavailable

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evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment

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is justified by an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d at 1111.

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However, because “the rule offers an extraordinary remedy, [it should] be used sparingly in the

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interests of finality and conservation of judicial resources.” Kona Enterprises, Inc., 229 F.3d at

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890 (internal quotation marks omitted).

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Plaintiff fails to meet any of the requirements for granting a motion under Rule 59(e) or

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Rule 60(b). Mere dissatisfaction with the court’s order, or belief that the court may be wrong in

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its decision are not grounds for relief under either of these rules. Plaintiff has not shown “mistake,

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inadvertence, surprise, or excusable neglect.” He has not shown the existence of either newly

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discovered evidence or fraud; he has not established that the judgment is either void or satisfied;

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and, finally, Plaintiff has not presented any reason justifying relief from judgment.

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Plaintiff’s speculation about the nature of the de novo review taken by the Judge in

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adopting the court’s findings and recommendations is not grounds to reopen the case or conduct

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further proceedings. Accordingly, the undersigned shall recommend that Plaintiff’s motion for
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further proceedings under Rules 59 or 60(b), filed on September 23, 2022, be denied.

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IV.

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CONCLUSION AND RECOMMENDATIONS
For the foregoing reasons, IT IS HEREBY RECOMMENDED that Plaintiff’s motion

for relief under Rule 59 or Rule 60(b), filed on September 23, 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.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

Such a document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

October 22, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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