Blackshire v. California Department of Corrections

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 06/16/15 denying 14 Motion motion to reopen construed as a motion for relief from judgment. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK BLACKSHIRE,

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Plaintiff,

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v.

No. 2:12-cv-2136 KJN P

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS,
Defendants.

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Plaintiff is a former jail inmate. Plaintiff consented to proceed before the undersigned for

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all purposes. See 28 U.S.C. § 636(c). On July 29, 2013, plaintiff’s case was dismissed based on

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plaintiff’s failure to file a timely amended complaint, and judgment was entered. (ECF No. 12,

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13.)

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On May 26, 2015, plaintiff filed a request to reopen this case. Plaintiff claims that he was

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incarcerated since June 20, 2013, so was unable to file any of the necessary paperwork. (ECF

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No.14.)

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The undersigned construes plaintiff’s motion as a motion for relief from judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
(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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However, plaintiff’s motion is untimely because it was filed almost two years after entry

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of judgment. Rule 60(c)(1) requires that motions under Rule 60(b) must be made within a

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reasonable time, and for reasons under Rule 60(b)(1), (2) and (3), such motion must be filed no

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more than a year after the entry of the judgment. Liberally construed, plaintiff’s motion is made

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under Rule 60(b)(1), and thus, was required to be filed on or before July 29, 2014. Plaintiff’s

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motion was filed May 26, 2015, almost 22 months after entry of judgment. Plaintiff’s motion is

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denied as untimely. Fed. R. Civ. P. 60(c)(1).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to reopen (ECF No. 14),

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construed as a motion for relief from judgment, is denied.

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Dated: June 16, 2015

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/blac2136.60b

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