Anderson v. Arnold, et al.
Filing
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ORDER signed by District Judge Morrison C. England, Jr., on 3/13/17 ORDERING that each of plaintiff's motions 31 , 32 and 35 , are DENIED. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CORNELIUS ANDERSON,
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Plaintiff,
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No. 2:14-cv-2660 MCE AC P
v.
ORDER
ERIC ARNOLD et al.,
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Defendants.
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I.
Introduction
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This action was dismissed without prejudice by order and judgment filed January 31,
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2017. See ECF Nos. 29, 30. Plaintiff filed a notice of appeal on February 27, 2017, which is
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currently pending before the Ninth Circuit Court of Appeals. See ECF Nos. 37, 38. During the
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interval between entry of this court’s judgment and plaintiff filing his notice of appeal, plaintiff
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filed three motions in this court: (1) motion to vacate the judgment of dismissal, ECF No. 31,
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filed February 7, 2017; (2) motion for appointment of counsel, ECF No. 32, also filed February 7,
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2017; and (3) motion for extension of time to file an appeal, ECF No. 35, filed February 17, 2017.
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For the reasons that follow, each of these motions is denied.
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II.
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Plaintiff moves, pursuant to Federal Rule of Civil Procedure 60(b)(6), for relief from this
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court’s judgment of dismissal. See ECF No. 31. Plaintiff’s motion, docketed February 7, 2017,
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was filed less than a week after entry of judgment and therefore within a “reasonable time” as
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required by Rule 60(c)(1). Moreover, because plaintiff’s motion was filed within twenty-eight
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days after entry of judgment, the time for filing an appeal does not commence until this court
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rules on the motion. See Fed. Rule App. Proc. 4(a)(4)(A)(vi) (“If a party files in the district court
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any of the following motions under the Federal Rules of Civil Procedure – and does so within the
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time allowed by those rules – the time to file an appeal runs for all parties from the entry of the
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order disposing of the last such remaining motion: . . . (vi) for relief under Rule 60 if the motion
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is filed no later than 28 days after the judgment is entered.”). More specifically, here, where
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plaintiff filed a notice of appeal after filing his Rule 60 motion, the notice does not become
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effective until this court rules on his Rule 60 motion. See Fed. Rule App. Proc. 4(a)(4)(B)(i) (“If
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a party files a notice of appeal after the court announces or enters a judgment – but before it
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disposes of any motion listed in Rule 4(a)(4)(A) – the notice becomes effective to appeal a
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judgment or order, in whole or in part, when the order disposing of the last such remaining
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motion is entered.”).
Motion for Relief From Final Judgment
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Thus, although generally “[t]he filing of a notice of appeal is an event of jurisdictional
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significance – it confers jurisdiction on the court of appeals and divests the district court of its
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control over those aspects of the case involved in the appeal,” Griggs v. Provident Consumer
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Discount Co., 459 U.S. 56, 58 (1982) (per curiam), this court retains jurisdiction to consider the
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merits of plaintiff’s Rule 60 motion under Federal Rule of Appellate Procedure 4(a)(4)(B)(i).
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“Under Appellate Procedure Rule 4(a), a Rule 60(b) motion is ‘pending’ and suspends the effect
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of a notice of appeal when the motion is filed ‘no later than 28 days after the judgment is
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entered.’ Fed. R. App. Proc. 4(a)(4)(A)(vi).” Lasenbby v. State Farm Fire & Cas. Co., 2015 WL
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3505320, at *1 n.5, 2015 U.S. Dist. LEXIS 72693, at *2 n.5 (D. Nev. June 2, 2015) (citing United
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Nat’l Ins. v. R & D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (notice of appeal did not
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divest district court of jurisdiction because motion for reconsideration was pending)); accord,
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Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1129 n.2 (9th Cir. 2008) (“Construing
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Plaintiff’s motion as seeking relief under either Federal Rule of Civil Procedure 59 or 60(b), that
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motion tolled the time period for filing the notice of appeal.”) (citing, inter alia, Miller v. Marriott
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Int’l., Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002) (same principal applied to motions for
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reconsideration)).
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Before turning to the merits of the instant motion, the court notes that plaintiff previously
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filed a Rule 60(b)(6) motion challenging the initial dismissal of this case without prejudice due to
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plaintiff’s failure to file an amended complaint. By order filed September 23, 2016, the court
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granted plaintiff’s first Rule 60(b)(6) motion, vacated judgment, reopened this case and accorded
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plaintiff additional time to file an amended complaint. See ECF No. 23. However, due to the
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subsequently demonstrated futility of according plaintiff additional time, the court again
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dismissed the action on January 31, 2017. See ECF No. 29; see also ECF No. 27 (findings and
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recommendations). It is this dismissal that plaintiff now challenges.
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Federal Rule of Civil Procedure 60(b)(6) provides that “the court may relieve a party . . .
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from a final judgment, order, or proceeding for . . . any . . . [unenumerated] reason that justifies
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relief.” “Judgments are not often set aside under Rule 60(b)(6). Rather, the Rule is used
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sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where
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extraordinary circumstances prevented a party from taking timely action to prevent or correct an
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erroneous judgment. Accordingly, a party who moves for such relief must demonstrate both
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injury and circumstances beyond his control that prevented him from proceeding with the action
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in a proper fashion.” Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006)
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(citations, internal quotation marks and punctuation omitted). The “extraordinary circumstances”
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standard for assessing a Rule 60(b)(6) motion is intended to avoid a mere “second bite at the
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apple.” In re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989).
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Like plaintiff’s prior filings, the instant motion lacks coherence and appears to be a
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patchwork of excerpts from other motions and/or cases. For example, although it previously
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appeared that plaintiff was attempting to challenge the quality of his medical care, he now avers
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in random fashion that he “submitted the above-entitled complaint against the incorrect
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defendants;” he was deprived of his personal property “by prison officials in retaliation for the
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exercise of his First Amendment rights;” “due process violations are cognizable under 42 U.S.C.
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§ 1983;” and the “lead defendant [name blacked out] has no personal involvement in the matter in
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dispute, and likewise enjoys absolute immunity[.]” ECF No. 31 at 1. The typewritten portion of
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the motion, like plaintiff’s previous filings, is interlineated with handwritten statements.
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The incomprehensibility of this motion underscores the reasons this court previously
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dismissed this case. As the magistrate judge reasoned most recently, dismissal is appropriate
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“[d]ue to the proven futility of according plaintiff additional guidance and opportunity to file a
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cognizable pleading.” ECF No. 27 at 5. Plaintiff has presented no new or different facts or
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circumstances explaining his failure to properly pursue this action in the normal course or
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otherwise. Moreover, in the absence of any potentially cognizable claims, plaintiff’s repeated
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requests for appointment of counsel do not demonstrate that plaintiff proceeding pro se presents
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an extraordinary circumstance.
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Accordingly, plaintiff’s motion for relief from final judgment pursuant to Rule 60(b)(6),
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Federal Rules of Civil Procedure, ECF No. 31, is denied. This action shall remain dismissed
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without prejudice.
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III.
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Plaintiff’s motion for appointment of counsel, ECF No. 32, is denied for the several
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reasons previously set forth by the magistrate judge, see ECF No. 27, and because appointment of
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counsel in support of plaintiff’s instant Rule 60(b)(6) motion would be futile.
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Plaintiff’s Additional Motions
Plaintiff’s motion to extend time to file his appeal, ECF No. 35, is denied as unnecessary.
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Plaintiff’s notice of appeal, see ECF No. 37, will become effective upon the filing of the instant
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order. See Fed. Rule App. Proc. 4(a)(4)(B)(i).
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IV.
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For the foregoing reasons, IT IS HEREBY ORDERED that each of plaintiff’s motions
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filed after entry of this court’s January 31, 2017 judgment, see ECF Nos. 31, 32 and 35, are
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DENIED.
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IT IS SO ORDERED.
Dated: March 13, 2017
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