Harrell v. California Forensic Medical Group Inc. et al

Filing 75

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/29/18 RECOMMENDING that 71 Motion for Relief from Judgment be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations.(Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA NEIL HARRELL,

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No. 2:15-cv-0579 KJM DB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA FORENSIC MED.
GROUP, et al,
Defendants.

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Plaintiff is a county prisoner proceeding pro se. On April 5, 2018, this court issued

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findings and recommendations in which the undersigned recommended denial of plaintiff’s action

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under 42 U.S.C. § 1983 for failure to state a claim for relief. (ECF No. 66.) Plaintiff was advised

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that any objections to the findings and recommendations were due within fourteen days.

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On April 16, 2018, plaintiff filed a document entitled “Rescinded Magistrate Judge’s

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Findings and Recommendations In Full Accord With The Truth-in-Lending Act.” (ECF No. 67.)

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The court construed that filing as objections to the April 5 findings and recommendations. On

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May 15, 2018, the district judge adopted the findings and recommendations and dismissed this

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action. (ECF No. 68.) Judgment was entered on May 15, 2018. (ECF No. 69.)

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On August 27, plaintiff filed a Motion for Relief from Judgment. (ECF No. 71.) For the
reasons set forth below, the court recommends denial of the motion.
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MOTION FOR RELIEF FROM JUDGMENT

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I.

Legal Standards

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

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

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the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence that, with reasonable diligence could not have been discovered in time to

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

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

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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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II.

Analysis

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Plaintiff argues that because he was released from custody shortly after the findings and

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recommendations were issued he did not have the opportunity to filed objections. Apparently, he

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wished to file objections that were separate from his August 16 Truth-in-Lending Act arguments.

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He does not, however, explain what he wished to argue in any objections. Plaintiff states that

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being homeless recently and trying to keep up with his “extensive” number of court cases caused

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him to fail to file objections on a timely basis.

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Plaintiff fails to show that circumstances beyond his control prevented him from filing

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objections. Nor, for several reasons, has plaintiff shown that a manifest injustice will result if this

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case remains closed. First, because plaintiff does not explain any legitimate basis for objections

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to the findings and recommendations, he fails to show he suffered any injury as a result of his

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inadvertent failure to file objections. See Latshaw, 452 F.3d at 1103. Second, plaintiff had
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multiple opportunities in this case to state a civil rights claim. As the court pointed out

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previously, plaintiff filed a total of seven complaints in this case, four of which were screened by

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the court. Plaintiff was instructed numerous times about the standards for pleading a cognizable

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claim under § 1983. Not once did the court find that he had done so. Plaintiff fails to

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demonstrate any extraordinary circumstances that would provide a basis for relief from the

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judgment in this action.

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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for relief from
judgment (ECF No. 71) be denied.
These findings and recommendations will be 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. The 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 filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 29, 2018

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DLB:9
DLB1/prisoner-civil rights/harr0579.60b

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