King v. McDonald et al

Filing 127

ORDER signed by Judge John A. Mendez on 3/20/2015 DENYING plaintiff's 124 Motion to Vacate. This is CLOSED. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE STEPHEN KING,

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Plaintiff,

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No. 2:10-cv-2797 JAM DAD P

v.

ORDER

MIKE McDONALD, et al.

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with an action for alleged violations of his

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civil rights, pursuant to 42 U.S.C. § 1983. On June 19, 2014, plaintiff filed a motion to vacate

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pursuant to Federal Rule of Civil Procedure 60(b). Although the motion is not entirely clear, the

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court construes the target of the motion to be the court’s decision to grant summary judgment in

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favor of defendants Carter and Bigford and enter judgment against plaintiff on all claims. (Docs.

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No. 93, 94.)
Plaintiff seeks to vacate the court’s judgment on the basis of newly discovered evidence

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that he believes supports his claim that the defendants, both correctional officers, unlawfully

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deprived him of his personal property. The new evidence comes in the form of affidavits by two

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fellow prisoners who witnessed the defendants’ alleged destruction of plaintiff’s personal

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property. (See Motion (Doc. No. 124) at 2, 38, and 40.)

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A motion for relief under Rule 60(b)(2) on the basis of newly discovered evidence

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requires the moving party to show that the evidence “(1) existed at the time of trial, (2) could not

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have been discovered through due diligence, and (3) was ‘of such magnitude that production of it

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earlier would have been likely to change the disposition of the case.’” Jones v. Aero/Chem Corp.,

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921 F.2d 875, 878 (9th Cir. 1990) (citation omitted).

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Without ruling on the first two factors, the court finds that this motion fails under the

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third. The court granted summary judgment on the claim for deprivation of personal property

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because plaintiff had an adequate post-deprivation remedy under California law. (See Findings

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and Recommendations (Doc. No. 85) at 10; Order Adopting Findings and Recommendations

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(Doc. No. 93).) “[W]here the state provides a meaningful post deprivation remedy, only

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authorized, intentional deprivations constitute actionable violations of the Due Process Clause.”

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(Findings and Recommendations at 10 (relying on Hudson v. Palmer, 468 U.S. 517, 533 (1984)).)

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The court found no evidence of an authorized deprivation of property; therefore dismissal of the

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claim was appropriate. The Ninth Circuit affirmed this court’s judgment on the same ground.

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(USCA Memorandum (Doc. No. 125) at 2 (citing Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.

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1994).) Plaintiff’s newly obtained affidavits from witnesses to the alleged deprivation of his

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personal property would not have changed the application of that rule of law to dismiss his claim.

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In other words, plaintiff has made no showing that these sworn declarations would have had any

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effect on the final disposition of his case. Therefore the motion to vacate judgment on the basis of

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newly discovered evidence is without merit.

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Finally, plaintiff has attached a written statement from a prisoner attesting to the alleged

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inadequacy of inmates’ access to the prison library at High Desert State Prison and of the legal

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materials there. (See Motion at 33-34.) The statement is not signed, sworn or dated and is

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therefore of little reliability. Moreover, plaintiff makes no showing that because of inadequate

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library access or materials he was prejudiced or hindered in pursuing his claims in this case. See

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Lewis v. Casey, 518 U.S. 343, 348-51 (1996). Therefore, to the extent plaintiff seeks relief from

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judgment on the basis of this third, unsworn declaration, his motion fails.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion to vacate (Docket No. 124) is denied.

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2. This case be closed.

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DATED: March 20, 2015

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/s/ John A. Mendez_______________________

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UNITED STATES DISTRICT COURT JUDGE

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