Hernandez v. Unknown

Filing 62

ORDER signed by Judge Garland E. Burrell, Jr. on 8/2/2011 DENYING plaintiff's 61 Motions to Vacate Judgment pursuant to Fed. Rule of Civ. Proc. 59 and 60. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JORGE HERNANDEZ,

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Plaintiff,

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No. CIV S-07-1986 GEB DAD P

vs.
KAREN KELLY, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking

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relief under 42 U.S.C. § 1983. On March 30, 2011, the court granted defendants’ motion for

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summary judgment. On the same day, the court entered judgment and closed the case. Plaintiff

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has filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure

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59(e) or, alternatively, to vacate the judgment pursuant to Federal Rule of Civil Procedure 60(b).

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Turning first to plaintiff’s motion brought pursuant to Rule 59(e), the court finds

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that plaintiff’s motion is untimely. Under Rule 59(e), a party must file a motion to alter or

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amend a judgment “no later than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e).

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Here, the court entered judgment on March 30, 2011. Even applying the mailbox rule, plaintiff

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did not file his motion until June 5, 2011, well after the 28-day deadline to file the motion had

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expired.
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Moreover, even if plaintiff had timely filed his motion, he is not entitled to relief.

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The Ninth Circuit has held that “[a] motion for reconsideration under Rule 59(e) ‘should not be

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granted, absent highly unusual circumstances, unless the district court is presented with newly

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

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law.’” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389

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Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Here, plaintiff does not argue

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that newly discovered evidence or an intervening change of the law requires reinstatement of this

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action. In addition, the court conducted a de novo review of the Magistrate Judge’s findings and

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recommendations on March 30, 2011. The court considered all papers and files in this action at

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that time, including plaintiff’s March 8, 2011 objections to the findings and recommendations.

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Plaintiff has not demonstrated that this court committed any error whatsoever in granting

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defendants’ motion for summary judgment. Accordingly, the court will deny plaintiff’s motion

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pursuant to Rule 59(e).

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As to plaintiff’s motion brought pursuant to Rule 60(b), plaintiff has not specified

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what provision of Rule 60(b) he believes entitles him to relief. Nor has he alleged circumstances

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such as mistake, newly discovered evidence, fraud, that the judgment is void, or that the

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judgment has been satisfied pursuant to Rule 60(b)(1)-(5). Presumably, plaintiff seeks relief

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pursuant to Rule 60(b)(6), the “catch-all provision,” which allows the court to relieve a party

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from final judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

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The Ninth Circuit has cautioned that Rule 60(b)(6) is to be “used sparingly as an

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equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary

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circumstances prevented a party from taking timely action to prevent or correct an erroneous

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judgment.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoting Latshaw v. Trainer

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Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006)). In this regard, “a party seeking to reopen

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a case under Rule 60(b)(6) must demonstrate both injury and circumstances beyond his control

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that prevented him from proceeding with the prosecution or defense of the action in a proper

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fashion.” Id. (internal quotations omitted)

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Here, plaintiff does not argue that he encountered extraordinary circumstances

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that prevented him from diligently prosecuting this action. In fact, plaintiff was able to fully

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apprise the court of his arguments on the relevant issues in opposing defendants’ motion for

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summary judgment and in filing objections to the assigned magistrate judge’s findings and

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recommendations. Accordingly, the court will also deny plaintiff’s motion brought pursuant to

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Rule 60(b)(6).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion pursuant to Rule 59(e) is denied; and

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2. Plaintiff’s motion pursuant to Rule 60(b) is denied.

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Dated: August 2, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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