Downs v. Beard

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 05/27/15 ordering petitioner's request for an extension of time to file objections, or a motion for reconsideration by a district judge 9 is denied. Petitioner's request for an extens ion of time 9 to file a motion for reconsideration pursuant to Rule 60(b) is granted. Petitioner is granted 30 days from the date of this order in which to file a motion for reconsideration pursuant to Rule 60(b). Petitioner's request to be provided with copies of legal decisions is denied without prejudice. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS,

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No. 2:15-cv-0611 KJN P

Petitioner,
v.

ORDER

JEFFREY BEARD,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel, or “pro se.” By order filed April

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22, 2015, the petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 was

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dismissed without prejudice. On May 14, 2015, petitioner filed a request for extension of time to

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file an “objection” to the April 22, 2015 dismissal. However, on April 1, 2015, petitioner

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consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). “Once a

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civil case is referred to a magistrate judge under section 636(c), the reference can be withdrawn

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by the court only ‘for good cause shown on its own motion, or under extraordinary circumstances

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shown by any party.’” Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (citation omitted). The

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undersigned does not find good cause to withdraw petitioner’s consent and petitioner has not

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presented extraordinary circumstances entitling him to withdraw his consent. Thus, to the extent

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petitioner seeks an extension of time to file a motion for reconsideration by a district judge, such

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request is denied.

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To the extent petitioner seeks an extension of time in which to file a motion for

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reconsideration of the April 22, 2015 order and judgment, pursuant to Rule 60(b) of the Federal

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Rules of Civil Procedure, petitioner’s request is granted. Rule 60(b) provides as follows:

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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:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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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Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances. . .” exist. Harvest

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v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The

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moving party “must demonstrate both injury and circumstances beyond his control. . . .” Id.

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(internal quotation marks and citation omitted).

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In seeking reconsideration of an order, Local Rule 230(j) requires plaintiff to show “what

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new or different facts or circumstances are claimed to exist which did not exist or were not shown

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upon such prior motion, or what other grounds exist for the motion.” Id. “A motion for

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reconsideration should not be granted, absent highly unusual circumstances, unless the district

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court is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law,” and it “may not be used to raise arguments or present

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evidence for the first time when they could reasonably have been raised earlier in the litigation.”

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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

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(internal quotations marks and citations omitted) (emphasis in original).
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Good cause appearing, petitioner is granted an extension of time in which to file a motion
for reconsideration pursuant to Rule 60(b).

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In his request, petitioner also asks the court to issue an order to be provided with copies of

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legal decisions, similar to the order issued in Davis v. Lafler, 692 F.Supp.2d 705 (E.D. Mich.

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Aug. 11, 2009). In Davis, the district court ordered the respondent in a habeas action to provide

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the pro se petitioner with paper copies of any unpublished decisions and electronically-available-

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only opinions to which respondent had cited or may cite in respondent’s pleadings. Id. at 706.

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Here, respondent was not served, and there has been no appearance by the Office of the

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Attorney General. Thus, there is no respondent to order to provide petitioner with copies of legal

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authorities. Moreover, the April 22, 2015 order explained the ground for the dismissal. Petitioner

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filed his action on the form for filing a petition for writ of habeas corpus. (ECF No. 1.) Habeas

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corpus proceedings are appropriate for challenging the fact or duration of a prisoner’s

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confinement. Petitioner made no such challenge here. Rather, in petitioner’s initial pleading,

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petitioner alleged violations of his right to equal protection and due process, and violations of the

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ADA and the IDEA; such claims challenge petitioner’s conditions of confinement and must be

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raised in a civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF No. 7 at 2.) Thus,

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because habeas jurisdiction was absent, the action was dismissed.1 In addition, as set forth above,

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the undersigned has provided petitioner with the standards governing a motion for reconsideration

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under Rule 60(b) of the Federal Rules of Civil Procedure.

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For these reasons, petitioner’s request for an order under Davis is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for an extension of time to file objections, or a motion for

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reconsideration by a district judge, (ECF No. 9), is denied;

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The undersigned also noted that petitioner, as a nonlawyer proceeding without counsel, could
not pursue this case as a class action. (ECF No. 7 at 1.) On page 16 of petitioner’s typewritten
attachment to the habeas form, petitioner included himself and 19 other inmates, complete with
their inmate identification numbers. (ECF No. 1 at 16.) The first sentence of his attachment
began: “Class action Writ of Habeas Corpus for violation of the Americans with Disability Act . .
. .” (ECF No. 1 at 16.)
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2. Petitioner’s request for an extension of time (ECF No. 9) to file a motion for
reconsideration pursuant to Rule 60(b) is granted;
3. Petitioner is granted thirty days from the date of this order in which to file a motion for
reconsideration pursuant to Rule 60(b); and
4. Petitioner’s request to be provided with copies of legal decisions is denied without

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prejudice.

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Dated: May 27, 2015

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/down0611.36

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