Lira v. Prosper et al

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/19/21 RECOMMENDING that plaintiff's motions to reopen 38 , 42 be denied. Motions 38 , 42 referred to Judge William B. Shubb. Objections due within 21 days.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN LIRA,

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Plaintiff,

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No. 2:05-cv-02452 WBS GGH

v.

FINDINGS AND RECOMMENDATIONS

K. PROSER, et al.,

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Defendants

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Plaintiff, a state prisoner proceeding pro se, has filed motions to reopen this action. ECF

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Nos. 38, 42. These motions have been referred to the undersigned by the assigned district judge.

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See ECF Nos. 41, 43.

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Plaintiff requests that the Court reopen his previously dismissed civil rights action. ECF

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No. 42 at 1. Plaintiff states he dismissed his action based on retaliation he faced from correctional

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officers at the time and was unable to proceed in his action out of fear of gang repercussions. Id.

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at 2. Plaintiff moves to reopen this action because he continues to suffer physical and mental pain

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from the actions committed by defendants while in prison. Defendants have filed an opposition

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arguing the motion is untimely; petitioner has not sufficiently alleged good cause exists to grant

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the motion; and that defendants would be prejudiced if this action were to be reopened. ECF No.

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45.

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On October 19, 2007, plaintiff filed a notice to voluntarily dismiss this action. ECF No.

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34. By court order, on October 31, 2007, defendants filed a statement of non-opposition to

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plaintiff’s request. ECF Nos. 35, 36. On December 14, 2007, the case was dismissed, and the

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Clerk of the Court directed to close this action. ECF No. 37.

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Liberally construing plaintiff’s motion, the undersigned will address this motion pursuant

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to Fed. R. Civ. P. 60(b). 1 Under Rule 60(b), a party may seek relief from judgment and to reopen

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an action in limited circumstances, “including fraud, mistake, and newly discovered evidence.”

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Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). “Motions for relief from judgment pursuant to

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Rule 60(b) of the Federal Rules of Civil Procedure are addressed to the sound discretion of the

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district court.” Allmerica Financial Life Insurance and Annunity Company v. Llewellyn,139 F.3d

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664, 665 (9th Cir.1997). “A motion under Rule 60(b) must be made within a reasonable time” and

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“no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.

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R. Civ. P. 60(c)(1). 2 Although plaintiff does not identify a clear basis for relief pursuant to Rule

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60(b)(1)-(3), nevertheless, plaintiff’s request to reopen this action is untimely given that

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plaintiff’s motion has been filed almost 14 years past the one-year time period. Even if Rule

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60(b)(6) is involved, plaintiff has not brought his motion within a reasonable time. Based on the

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allegations presented by plaintiff, the court will deny his motions to reopen this action.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motions to reopen (ECF
Nos. 38, 42) be DENIED.
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 28 U.S.C. § 636(b)(l). Within twenty-one days

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

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

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“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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Courts have held that the filing of a voluntary dismissal “is a judgment, order, or
proceeding from which Rule 60(b) relief can be granted.” In re Hunter, 66 F.3d 1002, 1004 (9th
Cir. 1995).
2 The one-year time period is limited to motions under Rule 60(b) (1)-(3).
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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 19, 2021

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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