Alford v. Ma

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/07/18 RECOMMENDING that plaintiff's motion for relief from judgment 41 be denied. Motion 41 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRACY FIDEL ALFORD,

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Plaintiff,

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v.

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No. 2:13-cv-2493 KJM KJN P

DR. MA,

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FINDINGS & RECOMMENDATIONS

Defendant.

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I. Introduction

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Plaintiff is a state prisoner. On January 6, 2017, this action was dismissed without

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prejudice under Rule 41(b) of the Federal Rules of Civil Procedure. On April 24, 2018, plaintiff

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presented his motion for relief from judgment to prison officials for mailing. (ECF No. 41 at

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23.)1 Along with his motion, plaintiff filed his opposition and other supporting documents

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responsive to defendant’s April 8, 2016 supplemental motion for summary judgment. As set

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forth below, plaintiff’s motion for relief from judgment should be denied as untimely.

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II. Legal Standard
Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n motion and upon

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such terms as are just, the court may relieve a party . . . from a final judgment, order, or

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Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date
prisoner delivers it to prison authorities).
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proceeding for the following reasons: (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

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time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct by

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an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.” 2

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Motions made under Rule 60(b) (1), (2), and (3) must be made no more than a year after

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the entry of the judgment or order or date of the proceeding.” Fed. R. Civ. P. 60(c)(1).

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A motion under Rule 60(b)(6) “must be made within a reasonable time.” Fed. R. Civ. P.

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60(c)(1). Rule 60(b)(6) is used “sparingly as an equitable remedy to prevent manifest injustice.”

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United States v. Aline Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). To qualify

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for relief under Rule 60(b)(6), plaintiff must “establish the existence of extraordinary

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circumstances.” Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012). In addition, a party

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moving for relief under Rule 60(b)(6) “must demonstrate both injury and circumstances beyond

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his control that prevented him from proceeding with the action in a proper fashion.” Latshaw v.

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Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103(9th Cir. 2006) (internal quotation marks and

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alteration omitted).

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III. Discussion

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Plaintiff’s motion for relief from judgment is untimely, and should be denied. Under

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Rules 60(b)(1), (2), and (3), he failed to file the present motion within a year after the judgment

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was entered. Fed. R. Civ. P. 60(c)(1). Therefore, the court lacks jurisdiction to consider the

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untimely motion under Rules 60(b)(1), (2), and (3). See Nevitt v. United States, 886 F.2d 1187,

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1188 (9th Cir. 1989) (holding that the district court lacked jurisdiction to consider an untimely

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motion under Rule 60(b)(2)).

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The undersigned also finds plaintiff’s motion untimely under Rule 60(b)(6). Plaintiff

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states that on April 3, 2015, he learned his mother had died, and at that time it was his intent to

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pursue his claims in this case as well as in Alford v. Dang, 14-cv-0714 KJM EFB P (E.D. Cal.).

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However, the court in Dang noted that one month after learning of his mother’s death, plaintiff

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Subsection (4) “the judgment is void,” and subsection (5) “the judgment has been satisfied,” do
not apply. Fed. R. Civ. P. 60(b)(4), (5).
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filed objections and a proposed amended complaint, yet failed to mention his mother’s death in

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such objections. (Id. (ECF No. 31 at 4, citing ECF Nos. 17 & 18).) 3 In the instant case, plaintiff

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filed a request to amend on June 1, 2015, but did not mention his mother’s death. (ECF No. 28.)

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Nevertheless, the death of plaintiff’s mother occurred well over a year and half before judgment

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was entered in this case. Given such time frame, her death does not constitute extraordinary

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circumstances for plaintiff’s delay after January 6, 2017.

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In addition, in Dang, plaintiff filed objections on March 20, 2017, less than a week after

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judgment was entered in that case. Id. Plaintiff fails to explain why he did not also seek relief in

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this case in March of 2017. Plaintiff states he has been “trying to diligently file,” citing

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paragraphs 6, 7 and 8 of his declaration. In those paragraphs, he repeats that he has been trying to

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diligently file his request for relief and to comply with all court orders and rules, without

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requesting appointment of counsel or requesting an injunction. He states that when he was

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transferred he was on single cell status, but when he arrived at his new prison, he received a rules

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violation report on July 19, 2017, for not entering a cell that was occupied by an unknown inmate,

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and placed on C status. (ECF No. 41 at 4-5, 7.)4 However, plaintiff fails to explain how his

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transfer and receipt of a rules violation report in July of 2017 prevented him from earlier seeking

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relief in this action. Plaintiff continued to file documents in Dang, on August 25, 2017 (ECF

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Nos. 29 & 30), yet filed nothing in this action until the instant motion was filed on April 27,

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2018. Absent additional facts not presented here, prison transfers, as well as the issuance of rules

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violation reports, are not extraordinary circumstances for California prisoners.
Importantly, plaintiff’s filings in Dang demonstrate he was able to file documents with the

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court. Id.

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The court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803
F.2d 500, 504 (9th Cir. 1986).
Plaintiff also claims he “must file a preliminary injunction,” and appears to state he will provide
reasons for a request for preliminary injunction. (ECF No. 41 at 2, 5.) Plaintiff has not filed such
a motion, and his current filing is insufficient for the court to construe as such a motion.
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Therefore, the undersigned cannot find that plaintiff’s delay in bringing his motion was

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reasonable, or that extraordinary circumstances prevented him from earlier filing his motion

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under Rule 60(b)(6).

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Accordingly, plaintiff’s motion for relief under Federal Rules of Civil Procedure 60(b)(1),

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(2), (3), and (6) should be denied.

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IV. Conclusion

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IT IS HEREBY RECOMMENDED that plaintiff’s motion for relief from judgment (ECF
No. 41) be denied.

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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 fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 7, 2018

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/alfo2493.60b

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