Lopez v. Cate et al

Filing 30

ORDER signed by Judge Morrison C. England, Jr. on 2/29/2012 DENYING 26 Motion for Relief from Judgment. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,

No. 2:11-cv-0806 MCE KJN P

Plaintiff,

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vs.

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ORDER

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MATTHEW CATE, et al.,

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Defendants.
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On December 30, 2011, plaintiff filed a motion styled, “Plaintiff’s Notice of Factual and

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Legal Error in December 12, 2011 Order and Request for Relief from Judgment (F.R.C.P. Rule

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60(b)).” (ECF No. 26.) Plaintiff cites to alleged errors in the December 12, 2011 order, re-

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arguing his claims contained in his October 18, 2011 objections and motion to reopen the case,

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and claims that the district court was required to re-open the case and re-address the findings and

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recommendations in light of plaintiff’s objections, “particularly because [plaintiff is] under a

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Ninth Circuit pre-filing review order.” (Id. at 2.)

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Plaintiff appears to argue that the district court was required to vacate the judgment and the order

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adopting findings and recommendations entered on September 29, 2011, in order to make it clear

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to the Ninth Circuit Court of Appeals that the district court had considered plaintiff’s objections

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to the July 18, 2011 findings and recommendations.

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Rule 60(b) provides:

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(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;
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(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;

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(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

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b).
Other than his reference to being subject to a pre-filing review order in the Ninth Circuit,

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plaintiff cites no authority for his theory that the court was required to vacate the order, reopen

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the case, and then re-enter judgment after reviewing the objections. Moreover, review of the

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December 12, 2011 order demonstrates that this court recited the history concerning the filing of

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plaintiff’s objections; this court reviewed plaintiff’s objections, performed a de novo review of

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this case, and declined to reopen this action. (ECF No. 25 at 2.) The Ninth Circuit has access to

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the district court record, and no further clarification concerning the procedural posture of this

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case was required.

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Finally, on January 12, 2012, plaintiff filed a notice of appeal from the December 12,

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2011 order, which was processed to the Ninth Circuit. On February 21, 2012, the Ninth Circuit

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declined to proceed with the appeal, finding the appeal “so insubstantial as to not warrant further

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review.” (ECF. No. 29 at 1.)

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Plaintiff fails to demonstrate that the judgment should be vacated pursuant to Rule 60(b)

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of the Federal Rules of Civil Procedure. Accordingly, IT IS HEREBY ORDERED that

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plaintiff’s December 30, 2011, motion (ECF No. 26) is DENIED. This civil rights action is now

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closed. Plaintiff is advised that any further documents filed by plaintiff will be disregarded and

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no orders will issue in response to future filings.

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IT IS SO ORDERED.
Dated: February 29, 2012

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________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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