Davies v. Low, et al

Filing 98

ORDER ADOPTING FINDINGS and RECOMMENDATIONS signed by Judge Lawrence K. Karlton on 12/20/06 ORDERING that plt's request for relief from judgment 96 is granted. The September 28, 2006 judgment 93 is vacated; The findings and recommendations filed August 28, 2006 85 are ADOPTED in full Defendant's motion for summary judgment 54 is granted. Plt's motion for reconsideration 94 is GRANTED; upon reconsideration, the court affirms its 9/12/06 order 90 denying plt's request for temporary restraining order. CASE CLOSED. (Duong, D)

(PC) Davies v. Low, et al

Doc. 98

Case 2:03-cv-00014-LKK-JFM

Document 98

Filed 12/21/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. Dr. K. LOW, Defendants. / Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On August 28, 2006, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. On September 11, 2006, plaintiff was granted until September 25, 2006 in which to file objections to the findings and recommendations. No objections were filed by September 25, 2006, and this court issued an order adopting the findings and recommendations on September 28, 2006. ///// 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA A. DAVIES, Plaintiff, No. CIV S-03-0014 LKK JFM P

ORDER

Case 2:03-cv-00014-LKK-JFM

Document 98

Filed 12/21/2006

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /////

However, on October 5, 2006, plaintiff filed a motion for relief from judgment. Fed. R. Civ. P. 60(b). Plaintiff noted he had filed objections to the findings and recommendations, which were signed on September 22, 2006, and filed with the court on September 27, 2006. Good cause appearing, the September 28, 2006 judgment will be vacated and the court will consider plaintiff's timely-filed objections.1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. In addition, on September 27, 2006, plaintiff filed a motion for reconsideration of this court's September 11, 2006 order denying plaintiff's request for temporary restraining order. However, as noted in this court's September 28, 2006 order, plaintiff's request for temporary restraining order is futile in light of the grant of summary judgment in this action. When seeking injunctive relief, plaintiff must show a "fair chance of success on the merits" of his claim. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982), quoting Benda v. Grand Lodge of International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1979). Plaintiff cannot make such a showing. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's October 5, 2006 request for relief from judgment is granted; 2. The September 28, 2006 judgment is vacated; 3. The findings and recommendations filed August 28, 2006, are adopted in full; 4. Defendant's November 18, 2005 motion for summary judgment is granted; and

The Supreme Court has held that the situation of pro se prisoners seeking to meet court deadlines is unique and that therefore a document may be "filed" on the date that it is given by an inmate to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270-72, 275 (1988). 2

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Case 2:03-cv-00014-LKK-JFM

Document 98

Filed 12/21/2006

Page 3 of 3

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5. Plaintiff's September 27, 2006 motion for reconsideration is granted; upon reconsideration, the court affirms its September 12, 2006 order denying plaintiff's request for temporary restraining order. DATED: December 20, 2006.

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