McKinney, et al v. CA Dept Corrections, et al

Filing 163

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/22/2019 RECOMMENDING 162 Motion for Relief from Judgment be denied. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with findings and recommendations. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALONZO McKINNEY,

12

Plaintiff,

13
14
15

No. 2:99-cv-0622-MCE-EFB P

v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

16
17

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

18
19

U.S.C. § 1983. On June 6, 2007, the case was closed after summary judgment was granted in

20

defendant’s favor. ECF Nos. 154, 155. Plaintiff appealed (ECF No. 156) and his appeal was

21

ultimately dismissed for lack of jurisdiction on November 19, 2007. See McKinney v. Thomas,

22

No. 07-16761 (9th Cir. 2007). The Ninth Circuit’s mandate issued on March 26, 2008. ECF No.

23

159. On September 21, 2018, plaintiff filed a request for relief from judgment. ECF No. 162.

24
25
26

That request must be denied.
/////

27

/////

28

/////
1

1

Legal Standards

2
3

Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the
district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

4
for:
5
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that with reasonably diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
any other reason justifying relief from the operation of the judgment.

6
7
8
9
10
11

Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, and for

12

reasons (1), (2), and (3), no more than a year after the entry of the judgment or order or the date

13

of the proceeding. Fed. R. Civ. P. 60(c)(1).

14

Analysis

15

Plaintiff argues that he is entitled to an evidentiary hearing in this case because he

16

“developed a factual basis of claim that, if proven, would entitle him to relief.” ECF No. 162 at

17

2. Thus, the court interprets the motion as seeking relief from judgment on the basis of newly

18

discovered evidence.1 And, because this motion was clearly not filed within one year of entry of

19

judgment, it must be denied. See Nevitt v. United States, 886 F.2d 1187 (9th Cir. 1989) (holding

20

that district court lacked jurisdiction to consider a Rule 60(b)(2) motion that was not filed within

21

one year of entry of judgment).2

22
23

1

The court is reduced to interpreting plaintiff’s probable intent because, other than the
first page, the entirety of the two-hundred and forty-nine page motion is composed of sundry
exhibits which are offered without context. ECF No. 162.

24
2

25
26
27
28

Even if plaintiff’s motion is construed as proceeding under 60(b)(6) rather than
60(b)(2), it would still be subject to the requirement that it be filed “within a reasonable time.”
Here, the approximately ten-year delay in filing precludes such a finding. See, e.g., Adams v.
Hedgpeth, 2014 U.S. Dist. LEXIS 69853, 2014 WL 1795167, at *2 (C.D. Cal. Apr. 9, 2014)
(“District courts have found a delay of even 14 or 15 months before seeking relief from a
judgment dismissing a habeas petition was unreasonable.”); Rodriguez-Villareal v. United States,
2007 U.S. Dist. LEXIS 60918, 2007 WL 2410058, at *3 (S.D. Cal. Aug. 17, 2007) (finding
2

1
2
3
4

Conclusion
Based on the foregoing, it is hereby RECOMMENDED that plaintiff’s motion for relief
from judgment (ECF No. 162) be DENIED.
These findings and recommendations are submitted to the United States District Judge

5

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

6

after being served with these findings and recommendations, any party may file written

7

objections with the court and serve a copy on all parties. Such a document should be captioned

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

9

within the specified time may waive the right to appeal the District Court’s order. Turner v.

10

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

11

DATED: May 22, 2019.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
petitioner’s 14-month delay before filing a Rule 60(b)(6) motion untimely).
28
3