Green v. CDCR et al

Filing 21

ORDER signed by Magistrate Judge Dale A. Drozd on 07/15/13 denying 19 Motion for relief pursuant to Rule 60(b)(6). (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH GREEN,

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Plaintiff,

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No. No. 2:11-cv-1515 DAD P

v.

ORDER

JAMES E. HILTON, et al.,

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Defendant.

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Plaintiff is a former state prisoner1 proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983.2 On April 23, 2013, the undersigned issued an order dismissing this action due

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to plaintiff’s failure to state a cognizable claim in his amended complaint. Judgment was entered

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that same day. Now before the court is plaintiff’s amended motion for relief under Rule 60(b)(6).

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Rule 60(b) of the Federal Rules of Civil Procedure provides in relevant part:

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On motion and upon such terms as are just, the court may relieve a
party . . . from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated

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On June 7, 2013, plaintiff filed a notice of change of address with the court indicating that he
had been released from custody. (ECF No. 20.)
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Plaintiff has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636(c). (ECF No. 4.)
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intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment has been
satisfied . . .; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order or proceeding was entered or taken.

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See also Gonzales v. Crosby, 545 U.S. 524, 528 (2005) (“Rule 60(b) allows a party to seek relief

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from a final judgment, and request re-opening of his case, under a limited set of circumstances

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including fraud, mistake, and newly discovered evidence.”). The plaintiff bears the burden of

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proof on a motion for relief from judgment pursuant to Rule 60(b), and such motions are

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addressed to the sound discretion of the district court. See Allmerica Financial Life Ins. and

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Annuity Co. v. Llewellyn, 139 F.3d 664, 665 (9th Cir. 1997); Yusov v. Yusuf, 892 F.2d 784, 787

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(9th Cir. 1989); Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986).

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In his motion, plaintiff contends that he has had difficulty explaining his case to the court

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because of the lack of legal assistance. (ECF No. 19 at 2.) As in his amended complaint, plaintiff

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asserts that someone must have known that inmate Thomas Jenkins was being sent to the same

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prison where plaintiff had been transferred and should have known that plaintiff’s safety would

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be placed in danger if he and inmate Jenkins were confined at the same institution. (Id. at 3.)

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Plaintiff explains his history with inmate Jenkins and how a conflict arose between them

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concerning Jenkins’ involvement with the illegal use of a cell phone. (Id. at 4-5.) Plaintiff

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believes that his transfer and inmate Jenkins’ transfer to the same facility is suspicious and must

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be due to some serious omission by unidentified prison staff. (Id. at 5.) Plaintiff also contends

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that the court has been insensitive to the physical and mental trauma that he has suffered. (Id. at

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6.) Lastly, plaintiff requests that the court reconsider the dismissal of this action because of

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unresolved questions concerning the transfers of he and inmate Jenkins to the same institution.

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(Id. at 6-7.)

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The court finds that plaintiff has failed to present proof of any newly discovered evidence

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in support of his motion for relief under Rule 60(b). In addition, plaintiff has failed to present

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anything justifying the granting of relief from judgment. Instead, plaintiff reasserts the

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allegations set forth in his amended complaint and argues that since he was injured by inmate
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Jenkins, there must have been a violation of his constitutional rights. This is bare allegation alone

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is insufficient for the granting of relief under Rule 60(b). Therefore, plaintiff's motion will be

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denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s May 6, 2013 amended motion

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for relief pursuant to Rule 60(b)(6) (ECF No. 19) is denied.

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Dated: July 15, 2013

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DAD:4
gree1515.60b

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