Scherffius v. Smith et al
Filing
96
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 7/9/2021 RECOMMENDING plaintiff's 92 motion for relief from judgment be denied. Referred to Judge John A. Mendez; Objections to F&R due within 20 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
MICHAEL E. SCHERFFIUS,
12
Plaintiff,
13
14
No. 2:13-cv-1277 JAM DB P
v.
FINDINGS AND RECOMMENDATIONS
CHRISTOPHER SMITH, et al.,
15
Defendants.
16
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under
17
18
42 U.S.C. § 1983. Presently before the court is plaintiff’s motion for relief from judgment. (ECF
19
No. 92.) For the reasons set forth below the court will recommend that the motion for
20
reconsideration be denied.
21
22
I.
Background
By order dated February 6, 2020 the district court adopted the undersigned’s findings and
23
recommendations recommending that defendants’ motion for summary judgment be granted.
24
(ECF Nos. 86.) Judgment was entered, and this action was closed. (ECF No. 87.) On March 5,
25
2020, plaintiff filed a notice of appeal. (ECF No. 88.) While the appeal was pending before the
26
Ninth Circuit Court of Appeals, plaintiff filed a motion for relief from judgment (ECF No. 92)
27
and a third amended complaint (ECF No. 93). The appeal was dismissed on April 1, 2021. (ECF
28
No. 95.)
1
Generally, once an appeal is filed, a district court no longer has jurisdiction to consider
2
motions affecting the judgment. Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007) (citing
3
Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986)). However, under Rule 4
4
of the Federal Rules of Appellate Procedure, if a party files a notice of appeal after the entry of
5
judgment but before disposition of certain motions, including a motion to alter or amend the
6
judgment under Federal Rule of Civil Procedure 59(e) or a motion for relief from judgment under
7
Rule 60(b), then the district court retains jurisdiction to consider and decide that motion and the
8
notice of appeal becomes effective when that motion is resolved. Because petitioner filed his
9
motion more than 28 days after the entry of judgment, his motion is treated as one under Rule
10
60(b).
11
II.
Plaintiff’s Motion
12
Plaintiff’s motion states that his primary care provider (PCP) stopped working for the
13
California Department of Corrections and Rehabilitation (CDCR) and was replaced with Dr.
14
Dhillon. (ECF No. 92.) Plaintiff indicates that PCP failed to facilitate communication between
15
his cardiologist and his neurosurgeon. As a result of care from his PCP, his cervical spine issues
16
got worse.
Defendants oppose plaintiff’s motion for relief from judgment. (ECF No. 94.) They
17
18
19
20
argue that plaintiff’s motion should be denied because it is unsupported and untimely.
III.
Legal Standards
Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n motion and upon
21
such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding
22
for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
23
discovered evidence that, with reasonable diligence could not have been discovered in time to
24
move for a new trial under Rule 59(b); (3) fraud ..., misrepresentation, or misconduct by an
25
opposing party; ... or (6) any other reason justifying relief from the operation of judgment.”
26
In order to prevail on a Rule 60(b)(3) motion, “the moving party must prove by clear and
27
convincing evidence that the verdict was obtained through fraud, misrepresentation, or other
28
misconduct and the conduct complained of prevented the losing party from fully and fairly
2
1
presenting the defense.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (quoting
2
De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000)). Rule 60(b)(6)
3
is used “sparingly as an equitable remedy to prevent manifest injustice.” United States v. Aline
4
Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). To qualify for relief under Rule
5
60(b)(6), plaintiff must “establish the existence of extraordinary circumstances.” Mackey v.
6
Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012). In addition, a party moving for relief under Rule
7
60(b)(6) “must demonstrate both injury and circumstances beyond his control that prevented him
8
from proceeding with the action in a proper fashion.” Latshaw v. Trainer Wortham & Co., Inc.,
9
452 F.3d 1097, 1103 (9th Cir. 2006) (internal quotation marks and alteration omitted).
“A motion for reconsideration should not be granted, absent highly unusual
10
11
circumstances, unless the district court is presented with newly discovered evidence, committed
12
clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals,
13
Inc. v. Mucos Pharma GmbH & Co. (Marlyn), 571 F.3d 873, 880 (9th Cir. 2009). Further, “[a]
14
motion for reconsideration may not be used to raise arguments or present evidence for the first
15
time when they could reasonably have been raised earlier in the litigation.” Id. (emphasis in
16
original).
17
Moreover, when the motion for reconsideration pertains to an order granting or denying a
18
prior motion, Local Rule 230(j) requires the moving party to “[identify] what new or different
19
facts or circumstances are claimed to exist which did not exist or were not shown upon such prior
20
motion, or what other grounds exist for the motion; and [explain] why the facts or circumstances
21
were not shown at the time of the prior motion.” E.D. Cal. L.R. 230(j)(3)-(4).
22
23
24
IV.
Analysis
A. Plaintiff’s Motion Appears Timely
Defendants argue that pursuant to Federal Rule of Civil Procedure 60(b) a motion for
25
relief from judgment should be filed no more than a year after the entry of judgment. (ECF No.
26
94 at 5.) Judgement was entered on February 6, 2020. They state plaintiff’s motion was filed on
27
February 10, 2021. However, under the prison mailbox rule, a document is deemed served on the
28
date a prisoner signs the document and gives it to prison officials for mailing. Houston v. Lack,
3
1
487 U.S. 266, 276 (1988). Plaintiff’s motion is dated February 5, 2021. (ECF No. 92 at 6.)
2
Accordingly, the court finds that it was filed within one year of the entry of judgment.
3
B. Motion Fails to Show Plaintiff is Entitled to Relief from Judgment
4
Plaintiff argues the court should grant him relief from judgment pursuant to Federal Rule
5
of Civil Procedure 60(b)(3) because the court improperly denied his request for an extension of
6
time to file an opposition to defendants’ summary judgment motion. (ECF No. 92 at 1.)
7
Defendants filed a motion for summary judgment on June 2, 2017. (ECF No. 42.)
8
Plaintiff sought and was granted four extensions of time to file a response to the motion. (ECF
9
No. 43, 46, 48, 50.) Thereafter, plaintiff moved for a stay of the proceedings based on his
10
medical condition. (ECF No. 51.) Plaintiff included a letter from his doctor describing major
11
surgery that plaintiff was set to undergo and noted plaintiff’s “many” health problems. The case
12
was stayed with an order for plaintiff to notify the court within 120 days about the status of his
13
health. (ECF Nos. 54, 55.)
14
In February 2018 plaintiff filed a second motion to continue the stay because he had just
15
gone through two stent surgeries and was awaiting a major surgery revision of a prior cervical
16
spine fusion surgery. (ECF No. 57.) Defendants did not oppose the motion. (ECF No. 59.) The
17
court granted the request for a continuance of the stay and instructed plaintiff to notify the court
18
of the status of his health within 120 days. (ECF Nos. 60, 61.) Plaintiff filed a third motion to
19
continue the stay in July 2018. (ECF No. 63.) As with his prior requests for stay he explained
20
that he was still facing major spinal surgery and included a letter from his doctor describing
21
health conditions, recent and future medical procedures. Defendants did not file a response and
22
plaintiff’s motion was granted. (ECF Nos. 65, 67.)
23
Plaintiff filed a fourth motion for stay on March 15, 2019 describing his medical issues
24
but did not provide a doctor’s letter explaining why his medical condition rendered him unable to
25
complete legal work. (ECF No. 69.) Defendants opposed the motion arguing they had been
26
waiting years for resolution of their summary judgment motion. (ECF No. 70.) Plaintiff filed a
27
reply containing an update on his medical issues. (ECF No. 71.)
28
////
4
The undersigned found that plaintiff’s filings1 indicated that plaintiff was able to prepare
1
2
and file detailed, well-reasoned briefs, with extensive factual support, exactly what would be
3
required to oppose a motion for summary judgment. (ECF No. 72.) The court denied plaintiff’s
4
motion to continue the stay finding that he had not shown a basis for a fourth stay. (ECF No. 74.)
5
Following the denial of his request, plaintiff sought and obtained a fifteen-day extension
6
of time to file his opposition to defendants’ motion for summary judgment. (ECF Nos. 75, 76.)
7
Shortly thereafter, plaintiff filed an opposition to defendants’ motion for summary judgment.
8
Defendants’ motion was granted, and judgment was entered.
9
The facts alleged in the motion for relief from judgment are not newly discovered.
10
Plaintiff states that he received a new doctor in his objections to the undersigned’s findings and
11
recommendations recommending that plaintiff’s motion for continuance of the stay be denied.
12
(See ECF No. 73 at 2-5.) Further, many of the facts alleged in the instant motion were also
13
provided to the court in plaintiff’s reply to defendants’ opposition to his fourth motion for
14
continuance of the stay. (ECF No. 71.) The allegations presented in his motion for relief from
15
judgment are not newly discovered and have already been presented and considered by the court.
16
Thus, they do not constitute a sufficient basis for relief from judgment. See Pac. & Arctic Ry.
17
And Navigation Co. v. United Trasp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991) (“Federal Rule
18
of Civil Procedure 60(b)(3) require[s] that fraud . . . not be discoverable by due diligence before
19
or during the proceedings.”).
20
Additionally, plaintiff has not explained how the denial of his motion for a continuance of
21
the stay effected his ability to file an opposition to the motion for summary judgment. Plaintiff’s
22
complaint in this case was that defendant health care providers at Mule Creek State Prison
23
provided constitutionally deficient medical care in violation of his Eighth Amendment rights.
24
Plaintiff’s allegation in the instant motion appears to be that non-defendant health care providers
25
26
27
28
1
Plaintiff filed a motion to appoint counsel along with his motion to continue the stay. (ECF
Nos. 68, 69.) The motion to continue the stay contained three pages of argument and almost 20
pages of attachments. (ECF No. 69.) The motion for the appointment of counsel contained 17
pages of argument, a table of contents for his exhibits, and over 80 pages of exhibits. (ECF No.
68.)
5
1
at California Medical Facility (CMF)2 failed to adequately communicate with plaintiff’s
2
specialists. However, such an allegation fails to show that defendants engaged in conduct that
3
could be construed as fraud, misrepresentation, or misconduct. Accordingly, the court finds that
4
plaintiff has failed to show he is entitled to relief from the court order granting defendants’
5
motion for summary judgment.
6
V.
For the reasons set forth above, IT IS HEREBY RECOMMENDED that plaintiff’s motion
7
8
Conclusion
for relief from judgment (ECF No. 92) be denied.
9
These findings and recommendations will be submitted to the United States District Judge
10
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty (20)
11
days after being served with these findings and recommendations, either party may file written
12
objections with the court. The document should be captioned “Objections to Magistrate Judge’s
13
Findings and Recommendations.” The parties are advised that failure to file objections within the
14
specified time may result in a waiver of the right to appeal the district court’s order. Martinez v.
15
Ylst, 951 F.2d 1153 (9th Cir. 1991).
16
Dated: July 9, 2021
17
18
19
20
21
22
23
24
25
26
27
28
DLB:12
DB/DB Prisoner Inbox/Civil Rights/S/sche1277.rel.judg
2
Court records indicate that plaintiff has been housed at CMF since February 2018. (See
Plaintiff’s notice of change of address (ECF No. 58) and address indicated on all subsequent
filings.)
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?