Diaz v. Hurley et al

Filing 63

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/3/2019 DENYING plaintiff's 57 motion to return jurisdiction. IT IS RECOMMENDED that plaintiff's 56 motion to vacate be denied. Motion referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL ENRIGUE DIAZ,

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No. 2:15-cv-2083 KJM KJN P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

ASSOCIATE WARDEN HURLEY, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Judgment was entered and this

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action was closed on March 27, 2018. On May 2, 2019, plaintiff renewed his motion to vacate

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the judgment, and filed a motion to return jurisdiction to the district court. As set forth below, the

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undersigned denies the motion to return jurisdiction as moot, and recommends that plaintiff’s

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motion to vacate be denied because it was untimely-filed.

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I. Background

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On July 3, 2017, defendants filed a motion to revoke plaintiff’s in forma pauperis status,

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and to dismiss the complaint. After multiple extensions of time, plaintiff filed an opposition on

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October 10, 2017. (ECF No. 33.) Defendants filed a reply. (ECF No. 34.)

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On October 30, 2017, the undersigned found that plaintiff failed to plausibly demonstrate

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he faced imminent danger of serious physical injury at the time he filed his complaint, and

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recommended that (a) defendants’ motions be granted, including a recommendation that
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defendants be granted qualified immunity in connection with plaintiff’s heat-cooling claims;

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(b) plaintiff’s in forma pauperis status be revoked; (c) the complaint be dismissed; (d) plaintiff be

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required to pay the filing fee; and (e) plaintiff be allowed to file an amended complaint thirty days

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after he paid the filing fee. (ECF No. 35.) Because plaintiff’s objections crossed in the mail with

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the district court’s November 21, 2017 order adopting the findings and recommendations (ECF

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Nos. 36, 37), the district court vacated the order and granted plaintiff an extension of time to file

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objections.

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On January 24, 2018, over plaintiff’s objections, the previously-assigned district judge

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adopted the findings and recommendations in full, revoked plaintiff’s in forma pauperis status,

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dismissed the complaint, and ordered plaintiff to pay the filing fee within twenty-one days, and

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granted plaintiff leave to file an amended complaint thirty days after the filing fee was paid.

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(ECF No. 43.)

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On March 1, 2018, the undersigned recommended that this action be dismissed based on

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plaintiff’s failure to pay the filing fee. (ECF No. 46.) On March 27, 2018, the findings and

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recommendations were adopted in full, and this action was dismissed without prejudice.

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Plaintiff filed an appeal. While the appeal was pending, plaintiff filed a motion for relief

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from judgment, which was denied in light of plaintiff’s pending appeal. (ECF Nos. 52, 54.) On

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September 18, 2018, the appeal was dismissed for failure to prosecute.
On May 28, 2019, plaintiff filed motions styled “Motion to Vacate Denial of IFP. . .” and

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“Motion to Return Jurisdiction to District Court, both signed on May 15, 2019.1 (ECF Nos. 56,

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57.) Defendants filed oppositions. (ECF Nos. 58, 59.) Plaintiff did not file a timely reply. L.R.

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230(l).

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II. Motion to Return Jurisdiction

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Defendants are correct that jurisdiction returned to the district court following the

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September 10, 2018 order from the Ninth Circuit (ECF No. 55). Pursuant to such order,

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jurisdiction returned to the district court on October 1, 2018. Because this court now has

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The Court affords plaintiff application of the mailbox rule as to all his relevant filings. 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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jurisdiction, plaintiff’s motion to return jurisdiction is moot, and is denied.

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III. Motion to Vacate Judgment

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A. The Parties’ Positions

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In his motion, plaintiff seeks an order vacating the denial of his in forma pauperis status

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based on alleged “misconduct of defendants and defense counsel,” and claims there is no

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evidence “unless it is fabricated.” (ECF No. 56 at 1.) Plaintiff claims that the court should order

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defendants to provide heat plan logs from May 2015, to the present, to ensure “no fabrication.”

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Plaintiff claims that no special master or class attorney have investigated or spoke with plaintiff

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or any of the inmates who file appeals in an attempt to document abuses. Plaintiff asks the court

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to investigate, vacate the order denying plaintiff in forma pauperis status, and issue an order to

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show cause “on the subornation of perjury and perjury” in this action. (Id.)
Defendants argue that plaintiff’s motion is untimely because it was filed over a year after

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judgment was entered. Fed. R. Civ. P. 60(c)(1). Defendants further argue that plaintiff is not

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entitled to relief under Rule 60(b)(6): such rule is inapplicable because plaintiff’s alleged

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misconduct grounds fall under a different ground, and 60(b)(6) applies only in extraordinary

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circumstances not present here. (ECF No. 58 at 2.) Defendants contend that the court carefully

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considered plaintiff’s claims alleging high temperatures in the law library, and found the evidence

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submitted by defendants rebutted plaintiff’s claims, and revoked his in forma pauperis status

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because plaintiff was not in imminent danger of serious physical injury. Subsequently, plaintiff

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failed to pay the filing fee, and failed to prosecute his appeal. Defendants argue that plaintiff’s

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failure to pursue this action and the appeal “forecloses any finding of extraordinary

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circumstances.” (ECF No. 58 at 3.)
Finally, defendants note that even if plaintiff’s motion were not untimely, plaintiff

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presented no evidence to meet his burden under Rule 60(b)(3), which requires clear and

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convincing evidence of fraud, misrepresentation or conduct. (ECF No. 58 at 2 n.1.)

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B. Legal Standards

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Rule 60(b) of the Federal Rules of Civil Procedure provides:

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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:

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(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 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).2 In addition, “[a] motion under Rule 60(b) must be made within a

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reasonable time -- and for reasons (1), (2), and (3) no more than a year after the entry of the

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

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C. Discussion

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Here, plaintiff seeks relief on the grounds of misconduct, which falls squarely under Rule

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60(b)(3). Motions brought under 60(b)(3) must be filed within one year of the order or judgment.

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Fed. R. Civ. P. 60(c). Therefore, plaintiff’s motion seeking reversal of the January 24, 2018 order

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revoking plaintiff’s in forma pauperis status is untimely because his motion was submitted to

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prison authorities for mailing over one year and three months after the order was entered. To the

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extent plaintiff challenges the entry of judgment on March 27, 2018, plaintiff fares no better

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because his motion was submitted over a year and a month after judgment was entered.

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Moreover, the one year period “is not tolled during an appeal.” Nevitt v. United States, 866 F.2d

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1187, 1188 (9th Cir. 1989) (citations omitted) (“pendency of an appeal does not toll the one year

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period.”).

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A final order may also be reconsidered under Rule 59(e) (motion to alter or amend a judgment),
but such rule does not apply where the motion was filed more than 28 days after judgment was
entered. See Fed. R. Civ. P. 59(e) (requiring a motion to alter or amend a judgment to be filed
within 28 days after entry of judgment).
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Because plaintiff’s motion was not filed within a year of either the January 24, 2018 order

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or the March 27, 2018 judgment, this court lacks jurisdiction to consider plaintiff’s untimely

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motion. Id. at 1188.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to return jurisdiction
(ECF No. 57) is denied as moot; and

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IT IS RECOMMENDED that plaintiff’s motion to vacate (ECF No. 56) 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 filed and served 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: July 3, 2019

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/diaz2083.60b

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