Harrison v. Smith

Filing 38


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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 No. C 08-4123 SI (pr) 8 MARCUS HARRISON, v. 11 E. SMITH, For the Northern District of California United States District Court 10 ORDER DENYING PLAINTIFF’S MOTION TO VACATE JUDGMENT Plaintiff, 9 12 Defendant. / 13 14 This is a civil rights case filed pro se by a state prisoner. Plaintiff claimed that defendant, 15 a correctional officer, retaliated against him in several ways for his having filed a lawsuit against 16 another correctional officer. Defendant filed a combined motion to dismiss and for summary 17 judgment. The court concluded that plaintiff had not exhausted his administrative remedies and 18 that there was no genuine issue of material fact as to retaliatory motive, and granted the motion. 19 Judgment was entered in favor of defendant. 20 Plaintiff has moved to vacate the judgment, contending that the court erred in concluding 21 that he had not exhausted his administrative remedies. See Fed. R. Civ. P. 60(b)(1) (providing 22 that judgment may be vacated on grounds of “mistake, inadvertence, surprise or excusable 23 neglect."). He does not challenge the court’s ruling on the motion for summary judgment. 24 In his motion plaintiff merely reargues a contention he made in opposition to the motion 25 to dismiss, that he had been told he could not proceed further with his grievance, and that he thus 26 had exhausted such remedies as were “available.” The court rejected that argument in the ruling, 27 concluding that on the undisputed facts the grievance had been divided into two parts, one of 28 which related to supplies and was cancelled and thus not further appealable, and the other of 1 which plaintiff could have appealed but did not. There is nothing new in the motion that shows 2 mistake as to that point. But in any event, the ruling on the motion for summary judgment, 3 which plaintiff does not challenge, is sufficient to support the judgment. The motion to vacate 4 (document no. 36) is DENIED. 5 IT IS SO ORDERED. 6 Dated: December 7, 2011 . _______________________ SUSAN ILLSTON United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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