McColm v. Trinity County et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/21/2019 GRANTING plaintiff's 57 Motion. IT IS RECOMMENDED that plaintiff's 55 Motion to Amend be denied. Motion referred to Judge Morrison C. England Jr. Objections to F&R due within 21 days. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRICIA A. McCOLM,
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No. 2:12-cv-01984 MCE AC
Plaintiff,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
TRINITY COUNTY, et al.,
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Defendants.
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This matter is before the court on plaintiff’s motion to vacate the undersigned’s order
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disregarding plaintiff’s post-judgment motion to amend, which advised plaintiff that because the
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case is closed, no further filings would be considered. ECF No. 57. Plaintiff is proceeding in this
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matter pro se, and accordingly this motion was referred to the undersigned pursuant to Local Rule
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302(c)(21). In the request, plaintiff clarifies that her “motion to amend” is in fact a motion for
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relief from judgment pursuant to Federal Rule of Civil Procedure 60. For the reasons that follow,
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plaintiff’s motion to vacate (ECF No. 57) is GRANTED and the undersigned recommends
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plaintiff’s motion for relief from judgment (ECF No. 55) be DENIED.
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I.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
Plaintiff’s initial complaint was dismissed with leave to amend by Magistrate Judge Craig
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M. Kellison on February 12, 2016. ECF No. 11. Following several extensions of time at the
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request of plaintiff, Magistrate Judge Kellison recommended dismissal of plaintiff’s case for lack
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of prosecution on January 12, 2017. ECF No. 24. The recommendation was adopted by District
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Judge Morrison C. England on June 23, 2017, and the case was closed. ECF No. 28. On March
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29, 2018, Judge England granted plaintiff’s request for reconsideration, and re-opened the case on
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the basis of newly-presented medical records that indicated plaintiff had a medical condition that
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prevented her from timely filing an amended complaint. ECF No. 37 at 6. Plaintiff was given 60
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days to file an amended complaint (making it due May 28, 2018), with the warning that no further
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extensions of time would be granted. Id. Plaintiff filed her first amended complaint on May 30,
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2018. ECF No. 38. The case was reassigned to the undersigned on January 31, 2019.
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On March 20, 2019, the court screened plaintiff’s complaint pursuant to 28 U.S.C. §
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1915(e)(2). After a review of the First Amended Complaint (“FAC”), the court determined that
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plaintiff’s case required dismissal because the FAC failed to state a claim upon which relief could
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be granted. ECF No. 43 at 4. The undersigned noted that the FAC did not cure any of the
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pleading errors addressed in detail by Judge Kellison’s initial Findings and Recommendations.
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Id. The undersigned recommended dismissal without leave to amend, finding amendment would
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be futile. Id. at 5. The findings and recommendations were adopted, and judgment was entered,
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on October 15, 2019. ECF Nos. 53, 54.
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II.
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THE MOTION
On November 12, 2019, plaintiff filed a motion “to alter or amend order of dismissal,”
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which sought leave to file a second amended complaint and appointment of counsel. ECF No. 55.
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The motion states that it is being brought pursuant to Fed. R. Civ. P. 59(e) and 60(b)(1)(2)(6). Id.
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Misconstruing the motion as simply a motion to file a second amended complaint, the court
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issued an order in error disregarding plaintiff’s motion. ECF No. 56. On November 18, 2019,
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plaintiff filed a motion to vacate that order. ECF No. 57. Finding plaintiff is correct that the
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original “motion to amend” should have been addressed as a motion for relief from judgment
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pursuant to Fed. R. Civ. P. 60, the court GRANTS plaintiff’s motion at ECF No. 57 and considers
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the motion to amend (ECF No. 55) on the merits as a motion under Rule 60.
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III.
ANALYSIS
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Rule 60(b) provides for reconsideration of a final judgment or any order where one of
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more of the following is shown: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
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newly discovered evidence which, with reasonable diligence, could not have been discovered
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within twenty-eight days of entry of judgment; (3) fraud, misrepresentation, or misconduct of an
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opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; and (6) any other
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reason justifying relief. Fed. R. Civ. P. 60(b). A motion for reconsideration on any of these
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grounds must be brought within a reasonable time, and no later than one year, of the entry of the
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judgment or the order being challenged. Id. The final provision of Rule 60(b) permits courts to
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grant relief “whenever such action is appropriate to accomplish justice.” Mackey v. Hoffman,
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682 F.3d 1247, 1251 (9th Cir. 2012) (citations and internal quotation marks omitted). The
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moving party must show that “extraordinary circumstances” warrant relief. Liljeberg v. Health
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Servs. Acquisition Corp., 486 U.S. 847, 863–64 (1988).
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The court has reviewed the substance of plaintiff’s motion to amend (ECF No. 55) on its
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merits and in its entirety. Plaintiff argues that the court made false findings that defendants were
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immune from suit, and that the court’s findings that plaintiff was unable to meet the rules and
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standards of the court resulted in a miscarriage of justice and a failure to accommodate under the
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Americans with Disability Act. ECF No. 55 at 2-3. Plaintiff argues that the court’s failure to
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appoint counsel is a failure under the Americans with Disabilities Act and related California
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statutes. Id. at 3-4. Plaintiff argues that an acute injury suffered April 26, 2019 caused her to
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need additional time for filings. Id. at 5.
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Plaintiff’s arguments are rejected for several reasons. As to relief under Rule 60(b)(2),
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plaintiff’s arguments fail because her motion presents no newly discovered evidence. Plaintiff’s
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arguments that her injuries and disabilities caused her untimeliness and that the undersigned made
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improper rulings on immunity were already briefed in her objections to the undersigned’s
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Findings and Recommendations. See ECF No. 49. Accordingly, the District Judge in this matter
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already considered the arguments (including the April 26th injury) and rejected them in adopting,
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over plaintiff’s objections, the Findings and Recommendations and issuing judgment. ECF No.
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53, 54. Plaintiff does state that she desires to file “new medical exhibits under seal” but she does
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not identify how these new medical exhibits would alter the outcome or whether they differ in
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any way from the exhibits she submitted under seal with her objections and which the District
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Judge considered. ECF No. 51, 52. Insofar as plaintiff’s motion is based on “newly discovered
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evidence,” it fails because she presents no such evidence. ECF No. 55.
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Plaintiff’s motion, insofar as it is brought pursuant to the “mistake, inadvertence, surprise,
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or excusable neglect” clause and the “any other reason” clause of Rule 60(b), fails to identify any
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grounds for vacating the judgment, let alone “extraordinary circumstances.” Liljeberg, 486 U.S.
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847, 863–64 (1988). First, plaintiff’s argument regarding appointment of counsel is meritless. In
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“civil actions for damages, appointment of counsel should be allowed only in exceptional cases,”
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it is a privilege and not a right, and it is within the court’s discretion. U. S. ex rel. Gardner v.
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Madden, 352 F.2d 792, 793-94 (9th Cir. 1965). Plaintiff cites no authority for the proposition
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that the Americans with Disabilities Act entitles her to appointed counsel, and the court is aware
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of none. See, e.g., ECF No. 55 at 15-16.
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Further, while plaintiff’s motion focuses on her argument that the undersigned improperly
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found certain defendants immune, she fails to address another basis for dismissal of her case: that
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even after an opportunity to amend and with specific instructions, plaintiff failed to connect
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specific defendants to specific deprivations of rights to support to her claims under 42 U.S.C.
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§1983. ECF No. 43 at 4-5. Nor did plaintiff address the Findings and Recommendations with
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respect to her failure to comply with Fed. R. Civ. P. 20(a) by suing multiple defendants for
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unrelated claims in a single case. Id. at 4. Each of these reasons alone was sufficient for
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dismissal. Id. at 5. Even if the undersigned were to find the analysis on immunity was flawed
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(which she does not), it would not affect the determination that judgment was properly issued
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against plaintiff in this case.
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IV.
CONCLUSION
For the reasons stated above, the undersigned GRANTS plaintiff’s motion at ECF No. 57.
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Further, the undersigned RECOMMENDS denial of plaintiff’s motion to amend (ECF No. 55),
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which is construed as a motion for relief from judgment.
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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, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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DATED: November 21, 2019
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